Are you prepared for the NEW legal right to Statutory Shared Parental leave and pay?
This new legislation was enabled by The Children and Families Act 2014 back in March 2014 and brings with it a significant change to how parents care for their child in its first year. Known as Statutory Shared Parental Leave and Pay (SSPL&P) it came into force on 1st December 2014 and is relevant to babies born or adopted post 5th April 2015. So employers can expect queries and requests for this leave from this month (January 2015) onwards.
The concept is that with the exception of the first two weeks of Statutory maternity leave, parents can now choose how to share the remaining 50 weeks of statutory leave and 37 weeks of statutory pay entitlement between them. It has been estimated that there will be around 285,000 working parents who will be eligible. The same rights will apply to couples who adopt or are due to become surrogate parents. Working parents are considered parents of different or same sex, although for ease of writing I use the term mother and partner in this Employment Law Brief.
The concept is great as it now gives more flexibility and freedom between partners on exactly how they care for their child in the first year. However, if as an employer you thought Maternity and Adoption leave was complicated, guess what, the Government has made Shared Parental Leave no easier with complicated eligibility and notice requirements for both partners and strict process rules for you the employer to manage. Even most HR professionals would admit that Shared Parental Leave and Pay regulations are by no means simple to manage.
However access to good HR advice and support, so you have an understanding of eligibility, notices and information needed from your employees, and a sound easy to follow Shared parental Leave and pay policy and procedure in place, will make it more straightforward and easier for you to manage. You need to be able explain this new right to your employees, amend current contracts and policies and also manage requests for this new right within your business as from this month.
Alternatively you may want to check out our special HR Retainer Service for small employers and see how HRSfB can help keep the people side of your business more straightforward and easier to manage for you and keep you up to date with changes in legislation like this.
In the meantime in this quick overview I list the top 10 questions asked with regard to the new Shared Parental Leave legislation – and of course a brief overview of the answers for you.
Shared Parental leave Top 10 questions
Question one: How can leave be taken?
It can be taken in one continuous period, or discontinuous periods by either parent. The total leave taken by the two partners must not amount to more than 52 weeks in the first year. The leave can only be shared between two partners.
Question two: Can I refuse a request for shared parental leave?
As long as your employee is eligible and has given the correct notice and documentation, you cannot refuse or defer a request for a continuous period of Shared Parental Leave.
Now you can refuse to agree to a request of discontinuous shared parental leave. However, your employee has the right to submit up to three separate notices of leave/amendment, so if you do refuse they could simply submit one notice of continuous leave three times. This then would leave you no room to negotiate how the leave is taken if needed for your business.
For this reason I would personally recommend an employer works with their employee at the start, so a balance of their needs and the needs of your business can be agreed between you from the outset. Some employers may choose to state in their policies that they will not accept requests for discontinuous leave. But ask yourself if an employee really wants to stop and start their leave they just need to put in three separate requests for continuous leave and you cannot refuse. Which then begs the question, why bother it will just cause problems between you and your employee?
Question three: What leave can be taken and is it paid?
Eligible employees can share up to 50 weeks of statutory leave and 37 weeks of statutory pay between them. The first two weeks is statutory maternity leave and this cannot be shared (not applicable to adoption leave). However after this period the mother just needs just bring her maternity (or adoption) leave to an end early.
Then either partner can request to take Shared Parental Leave at any time within the child’s first birth or placement year either taken together or separately. The minimum period of leave must be one week, and then taken in multiples of complete weeks. And as mentioned above, leave can be taken as one continuous period, or discontinuous periods of leave. It can also be taken where the other partner is taking other leave such as paternity or unpaid parental leave.
Question four: What is the Pay?
Employees who qualify to receive statutory shared parental pay while on shared parental leave will be paid £139.58 per week from 5 April 2015 (an increase from £138.18 per week before 5 April 2015), or at 90% of the employee’s average weekly earnings, if this figure is lower than the Government’s set weekly rate.
Unlike Statutory Maternity Pay, there is no provision for the first six weeks to be paid at 90 per cent of the parent’s actual pay. This is the case even if the mother returns from maternity leave after only two weeks, during the period where the higher level of Maternity Pay would have been available to her.
Question five : So which employees will be eligible?
This is one of the complicated areas, but basically there is list of criteria.
For a start first, to qualify for SPL a mother must have a partner and first be entitled to either maternity/adoption leave or entitled to statutory maternity/adoption pay or maternity allowance. And, must have given notice to bring this leave and pay to an end.
Then either parent who wishes to take SPL must be an employee and share primary responsibility with the other parent for the care of the child and have given their employer notice of their entitlement – providing the required evidence requested within 14 days of the request being made.
In addition, a parent wanting to take SPL needs to meet a ‘continuity of employment test’ and their partner must also meet the ‘employment and earnings test’. Therefore:
Step 1 – Continuity of employment test. A parent seeking to take Shared Parental Leave must have worked for the same employer for at least 26 weeks at the end of the 15th week before the week in which the child is due (or at the week in which an adopter was notified of having been matched with a child for adoption) and still be employed in the first week that Shared Parental Leave is to be taken.
Step 2 Employment and earnings test In addition, their partner must have worked for 26 weeks in the 66 weeks leading up to the EWC and have earned at least £30 (2015 rate) a week in any 13 weeks.
In order to qualify for SPP, as well as an employee meeting the Continuity of employment test and their partner meeting the Employment and earning test, the employee must also have earned above the ‘Lower Earnings Limit’ current at the time in the eight week leading up to and including the 15th week before the EWC/placement date. And still be employed with the same employer at the start of the first period of SPL.
It is important to note if the mother works, but does not qualify for SML or SAL, for instance if she is self-employed. And, if she is entitled to SMP or maternity allowance during a period of not working, the father can still qualify for SPL leave if this maternity pay period is ended early. Of course the father still has to be eligible in his own right (see above). The mother in this situation is not able to take shared parental leave.
Question six: What notice and information needs to be given?
There are notices and information that both parents must normally give to their employer within designated time limits to be able to take shared parental leave. For instance:
- Maternity Leave Curtailment notice. This simply tells you when the mother wants her maternity /adoption leave to end and must be given 8 weeks prior to the first period of Shared Parental leave being taken.
- Notice of Entitlement and Intention. This will give you an indication of each period of SPL being requested and again is subject to 8 weeks notice.
- Period of leave notice This will tell you the start and end dates of each period of shared parental leave that the employee is requesting.
Each parent can submit a request notice a maximum of three times (or variations of notice) per pregnancy/adoption, whether for continuous or discontinuous periods of leave.
If when the notice is received by you, you may request evidence. There is a list, but it includes such evidence as:
- as copy of the birth certificate, or a declaration from the parents confirming the date and place of the child’s birth if the birth certificate is not yet available, or documents which notify the primary adopter of the date for placement
- the name and address of the other parent’s employer
- confirmation that maternity/adoption leave has or will cease (if not applicable to your employee) and
- who will be taking what leave.
Whatever you request your employees must provide this within 14 days of your request.
Question seven: What are the Shared Parental Leave in Touch Days
They are called SPLIT days (Shared Parental Leave in Touch Days) and 20 can be taken across the entire period. There is no requirement for to work to be done or offered during a leave period. They are there to give more flexibility for employers and employees so an employee can attend an important meeting or training, or complete a specific task without bringing their shared parental leave to an end. These will be in addition to the Keeping in touch (KIT) days already available for women on statutory maternity leave or those on adoption leave.
Question eight. If I pay enhanced maternity pay do I need to pay enhanced shared parental pay?
A very good question. There is no requirement in this legislation for you do to so. But most of us think it will be one that most likely will play out in the courts before there is a definitive answer. Ask yourself, how does paying one gender more than another for the same leave sit with the principals of equality between sexes within the Equality Act 2010. Then make your decision.
Question nine: What protection is there for employees taking up shared parental leave?
Similar employment rights to Maternity and adoption protections will transcend. Employees will simply continue to benefit from all terms and conditions of employment, except remuneration which would have applied if they had not been absent.
The right for your employee to return to their same job is dependent if the total leave they take. The magic number is 26 weeks total leave taken, including any combination of maternity, adoption, paternity or shared parental leave. Employees are entitled to return to the same job if they have taken leave of 26 weeks or less. If they have taken more than 26 weeks’ leave your employee has the right to return to either their same job, or a similar job if it is not reasonably practicable for you to return them to the same position.
An important note is employees will have automatic protection against dismissal or detriment for making or proposing to make use of the new shared parental leave system.
Question ten: What about Adoption and surrogacy?
All the above will apply to parents who are adopting a child due to be placed on or after 5 April 2015 via an adoption agency.
For surrogacy arrangements, if the intended parents have applied, or intend to apply, for a ‘parental order’ then, subject to meeting qualifying conditions, the nominated ‘primary’ adopter will be entitled to take adoption leave and pay and to end their adoption leave early and move onto shared parental leave.
As you can see it is a complicated bit of legislation for you to manage. I hope, however, my objective to give you a brief overview of the main points will at least highlight that there is a new legislation you need to get your head around.
Obviously this cannot replace taking bespoke professional advice to help you manage an individual situation in your business.
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Carole Thomson Chartered FCIPD, Tech IOSH
Senior HR Consultant
HR Support for Business
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