SHARED PARENTAL LEAVE
Does your business have an appropriate policy for Shared Parental Leave (as well as Maternity, Paternity and Adoption policies)? Are you an employee (or Director) of a company wondering if you could benefit from Shared Parental Leave? Read on to find out more…
Since Shared Parental Leave regulations came into effect in April 2015 there has been a stubbornly low take-up of eligible parents actually utilising this entitlement which was designed to provide parents with more flexibility in how they manage the care of their child during the first year after birth or adoption. The government’s own estimate is that take-up among eligible couples is between 2% and 8%, but campaign organisation Maternity Action believe the real figure is between 3% and 4%.
There are undoubtedly a number of factors which are contributing to this low utilisation level, and one of these is almost certainly that the whole policy and system can be complicated and confusing for employers and employees alike. We will try and simplify the policy by outlining the key points below.
The main gist
New mothers or adopters are usually entitled, as most people know, to a year off work (52 weeks) as Maternity Leave or Adoption Leave. Shared Parental Leave effectively allows 50 weeks of that leave to be shared between two parents to allow for a dual-parenting approach and to allow both parents to spend time with their child during those important first months. And if the parents meet certain criteria they may be eligible for Shared Parental Pay too, which is equal to Statutory Maternity/Adoption Pay.
Who is eligible for SPL?
There needs to be two parents in the partnership for SPL eligibility to apply. That could be a new mother and father or an adopting parent and their partner, but they must both have responsibility for caring for the child. The mother or adopting parent must be entitled to maternity/adoption leave or statutory maternity/adoption pay or maternity allowance. The partner/parent/father must be an employee and they must properly notify their employer of the entitlement and intention to take Shared Parental Leave.
There are some further qualifying criteria that the couple must meet to be eligible, called the ‘employment and earnings tests’:
One person in the partnership must be an employee with at least 26 weeks’ continuous service at the end of the 15th before the expected week of childbirth (or adoption match).
One person in the partnership must have been employed for 26 of the 66 weeks prior to the expected week of childbirth (or adoption match) and have earned at least £30 per week for 13 of the 66 weeks.
To be eligible for Shared Parental Pay there are some other criteria that the couple need to meet – the easiest way to see if you are eligible is to use the self-assessment tool on the government website: Check your eligibility
How is Shared Parental leave structured?
After the compulsory 2 weeks Maternity/Adoption Leave following childbirth or adoption match the remaining 50 weeks can be split and shared between the partnership in a variety of ways. The couple may choose to take back to back continuous periods of SPL; for example, the mother takes the first 25 weeks (as Maternity Leave), then the father takes the remaining 25 weeks as SPL.
The couple may choose to take several discontinuous blocks of leave; for example, primary adopter takes 10 weeks, second parent takes 10 weeks, then switching back and forth until the 50 weeks SPL has all been taken. It is also possible for both parents to be on SPL at the same time, so both parents could be off for 25 weeks together using up all available SPL in that 25 week period.
It is a requirement that all the leave must be taken within 52 weeks of the childbirth or adoption match, but other than this stipulation the possible structuring of the leave between the two parents is very flexible, provided the employee gives the correct notices to their employer, and providing the employer agrees to the proposed notices.
What are the notice obligations on the employee?
This is where the process can get a little tricky, depending on the proposed structure of SPL for which the employee is giving notice, as this can mean the employee being required to give multiple notices to their employer.
The first type of notice required in all circumstances of SPL is the mother (or primary adopter) providing their employer with a ‘curtailment notice’. This effectively notifies the employer of the employee’s entitlement and intention to take SPL by curtailing, or cutting short, their Maternity/Adoption Leave so that some can be transferred to SPL. The notice should also confirm if the employee is entitled to any Shared Parental Pay (ShPP).
The second notice requirement is for employees to give their employer at least 8 weeks’ notice of their intention to take a period of SPL, and to outline their proposed leave format. This ‘notice of entitlement’ must include details of:
how much Maternity/Adoption Leave the mother or primary adopter will have taken and how much SPL remains to be shared between the couple;
how the SPL will be divided and when the employee plans to take their share of the SPL;
what ShPP will be due to the employee based on the periods of leave being notified;
a declaration from the other parent stating that they are entitled to SPL based on the employment and earnings tests, that he/she is the child’s other primary care giver, and that both parents agree with the proposed division of SPL. Both parents must sign this notice.
A third type of notice may be required if the parents wish to vary the allocation of SPL which was notified in the ‘notice of entitlement’. Both parents must notify their employers of any changes giving at least 8 weeks’ notice before the varied dates occur by giving ‘notice to book leave.’ Think of this like giving notice to book or change holiday dates that you have booked with your employer. Employee’s must also give the same 8 weeks’ notice to vary leave if they no longer wish to use SPL and therefore wish to return to work early.
What are the employer’s obligations in responding to notices given?
Employers must confirm their agreement in writing to a continuous leave notification within 14 calendar days of receiving the notification – employers cannot refuse this type of request.
If the notification is for discontinuous leave (i.e. a back and forth pattern as per the example above) the employer does not have to agree it, but if acceptable to the business they must confirm acceptance in writing within 14 days.
If an employer cannot agree to a notification for discontinuous leave, due to the proposed leave pattern placing unmanageable strain on the business, the employer should meet with the employee to discuss the situation and hopefully find a compromise or alternative pattern that does work for all parties. The parties have 14 days from the date of notification to discuss and find a satisfactory pattern for both parties, but if this is not agreed in this period then the employee can either:
withdraw their notification and submit a new request, which the employer must consider and treat under the same statutory process (effectively resetting the discussion); or
choose to take the total amount of leave in a single continuous block. The employee can choose when this leave period begin, within 19 days of the date the notification was given and the employer cannot block this – it is a statutory entitlement.
So, employers can refuse any requests for discontinuous leave if they feel it is not in the best interests of the business to agree it. Much like a Flexible Working Request, any discontinuous pattern of SPL must be at the agreement of all parties. But employers cannot prevent employees form taking SPL in a single continuous block, and they may well find that refusal to compromise and find an acceptable arrangement for all parties could result in ill-feeling, breakdown in the relationship and even a grievance scenario.
Employers should take care to ensure that they are acting reasonably and fairly when handling any requests for Shared Parental Leave. Under the legislation, rights to SPL carry the same protection as Maternity, Paternity and Adoption rights and failure to treat employees fairly under these different schemes may lead to claims of sex discrimination – i.e. treating a male employee requesting SPL less favourably than you would a female employee requesting maternity leave.
The best approach for an employer is to listen to any requests for SPL with an open mind, accommodate the requests where possible and make sure the statutory processes are followed. And if in doubt, get advice from an HR Consultant to help guide you through this potentially complicated legislation.
What support is there for employers?
The good news for employers is that, just like Statutory Maternity Pay, you can claim back some or all of the money paid to your employees as Shared Parental Pay from the government.
If you are a larger employer (you paid more than £45,000 in Class 1 National Insurance in the last tax year) then you can claim back 92% of any Statutory Pay paid to your employees.
If your business qualifies for Small Employers’ Relief (you paid less than £45,000 Class 1 NIC) then you can reclaim 103% of any Statutory Pay paid to your employee.
If you are a business owner or Director and you would like to explore how Shared Parental Leave could work for you, your business or your employees, book a consultation with us to find out more.