What is it?
The idea behind the shared parental leave (SPL) legislation is simple. It aims to allow parents more flexibility in how they decide to care for their child in the first year after birth or adoption. SPL can allow both parents to take leave at the same time, or to alternate between who is caring for the child and who is working. It is hoped that this right will support families with new born babies or with children newly placed for adoption, and allow fathers or adoptive partners the chance to spend more time at home.
This right is a completely new right and does not affect normal Parental Leave.
How does it work?
Although the concept of SPL is simple, the way in which it operates is less so.
A mother or primary adopter is currently entitled to 52 weeks of maternity/adoption leave, and that will not change if they do not wish to exercise their right to SPL. SPL will allow the mother or primary adopter to bring that leave to an end and share what would have been the remainder of the maternity/adoption leave with the child's father or the mother's husband or civil partner or partner; or, in the case of adoption, the secondary adopter (the "other parent"). The mother's partner for these purposes is a person (whether of a different sex or the same sex) who lives with the mother and with the child in an enduring family relationship but is not the mother's child, parent, grandchild, grandparent, sibling, aunt, uncle, niece or nephew.
A mother must still take her two weeks compulsory maternity leave and the primary adopter must similarly take two weeks' adoption leave. The other parent who has caring responsibilities for the child will also still be entitled to take their two weeks' ordinary paternity leave. However the other parent must take their paternity leave prior to any SPL as otherwise they will lose their entitlement to paternity leave. The provisions which allowed the other parent to take additional paternity leave have been abolished.
Who qualifies for SPL?
If both the mother/primary adopter and the other parent wish to take SPL, then they both must meet certain requirements. The parent wishing to take SPL must:
- Have been working with their employers for a continuous period of 26 weeks, by the end of the 15th week before the expected week of childbirth (the "continuity of employment test");
- Have the main responsibility for the care of the child (apart from the other parent);
- Have served the requisite notices on their employers; and
- Have provided their employer with any necessary evidence, at their employer's request.
The following minimum earnings and employment requirements must also be satisfied by the other parent if the mother/primary adopter is wishing to take SPL; and by the mother or primary adopter if the other parent wishes to take SPL:
- They must have been engaged in employment with their employer, or self-employed, in at least 26 of the 66 weeks immediately preceding the expected week of childbirth; and
- They must have been paid on average £30 per week in the 13 highest earning weeks in the 66 weeks immediately preceding the expected week of childbirth.
The mother/primary adopter must have created the option to take SPL either by returning to work early and therefore ending her maternity or adoption leave, or by giving notice to curtail their entitlement to maternity or adoption leave (see below).
How much SPL can be taken?
In order to calculate how much SPL an employee and the other parent are, together, entitled to you must deduct the number of weeks of maternity or adoption leave that the mother or primary adopter has taken or is going to take from the full entitlement of 52 weeks.
The remainder can then be taken by the mother/primary adopter as SPL, by the other parent as SPL, or by a combination of the mother and the other parent. If both parents meet the SPL requirements they will need to decide how they want to divide their SPL and Shared Parental Pay entitlement (see below). They are permitted to take SPL at the same time, although both sets of leave will reduce the amount of SPL remaining available to them.
For example, if a mother ends her maternity leave after 10 weeks, following which the mother and the father both take 10 weeks of SPL at the same time, then the SPL remaining available to them at the end of that period of SPL will be 22 weeks.
How is the right to SPL exercised?
In order to exercise SPL there are three steps. Firstly the mother/primary adopter must either return to work or give notice that she is curtailing her maternity/adoption leave, together with either a Notice of Entitlement or a declaration of consent and entitlement. Secondly a Notice of Entitlement must be served by the other parent if they wish to take SPL. Thirdly, a Period of Leave Notice must be provided by the employee wishing to take the leave stating when they intend to take it.
Curtailment notice/mother returns to work
- The mother/primary adopter can either return to work early (automatically ending her maternity or adoption leave) or serve a curtailment notice on her employer.
- This notice will specify a date at some point in the future that the employee wishes her maternity or adoption leave to come to an end.
- Such a notice must be served 8 weeks before the date on which maternity or adoption leave is to end.
- Alongside the curtailment notice, the mother or primary adopter must serve either a "Notice of Entitlement" or a "declaration of consent and entitlement". A Notice of Entitlement is served highlighting the mother/primary adopter's intention to take SPL, and a declaration of consent and entitlement states that the other parent has served a notice of intention to take SPL and that she consents to the amount of leave he or she intends to take.
It should be noted that, although a mother or primary adopter cannot take SPL if they are not entitled to maternity or adoption leave, the other parent may be able to take SPL if the mother or primary adopter is entitled to maternity pay or allowance or adoption pay. This may happen where the mother is self employed and has an entitlement to maternity allowance but not maternity leave. The mother or primary adopter would still need to return to work early or curtail their entitlement.
Notice of Entitlement
- Must be served on the employer 8 weeks prior to the first period of leave specified in the notice. This must contain certain information and certain declarations.
- This is non-binding and therefore the employee can vary the periods of leave specified within a Notice of Entitlement. A variation must contain specific information, and there is no limit to how many variations can be served.
Period of Leave Notice
- This must be served on the employer in order to finalise the employee's requested period of SPL. If both parents wish to take SPL then each must serve a Period of Leave Notice on their own employer
- This must include start and end dates of the period(s) of leave requested in the notice.
- This notice can only be served once a Notice of Entitlement and intention to take SPL has been served.
- An employee can only serve 3 Period of Leave Notices on the employer (unless the employer agrees otherwise). Any variation notice of a Period of Leave Notice counts towards the limit.
How much leave can be requested in a Period of Leave Notice?
There is a distinction between a request for "continuous" and "discontinuous" leave.
Although the legislation is not entirely clear on the distinction, it appears that continuous leave takes place where a Period of Leave Notice contains a request for just one block of leave. Given that up to three Period of Leave Notices can be served, an employee could have up to three periods of "continuous" leave by serving three Period of Leave Notices.
It appears that discontinuous leave takes place where a Period of Leave Notice contains a request for more than one block of leave. For example a Period of Leave Notice could ask for three separate weeks of leave, broken up by periods of work. Given that up to three Period of Leave Notices could be served, each requesting a number of periods of discontinuous leave, it is possible that an employee could have a large number of small periods of leave interspersed with work.
Is an employer obliged to accept a request for a period of SPL?
If the employee requests one continuous period of leave in any given Period of Leave Notice then this must be accepted by the employer. If the employee suggests a discontinuous period of leave pattern in a Period of Leave Notice, then the employer has a period of two weeks to consider the request, propose alternatives and accept or refuse the request. If refused, the employee is entitled to take the period of leave in one continuous block.
What Shared Parental Pay (ShPP) is available?
Shared Parental Pay is calculated by deducting the number of week's maternity pay or adoption pay that the mother or primary adopter has already taken or plans to take from the 39 weeks of pay available. The remaining number of weeks will be the amount of ShPP that is available. A maximum of 37 weeks of ShPP is therefore available (39 week allowance - 2 weeks maternity/adoption pay for the compulsory period of leave). For example if the mother took 20 weeks of maternity leave, during which she claimed maternity pay, and her partner then took 20 weeks of SPL then (assuming all of the other criteria were met and the mother did not take any SPL) the partner would be entitled to be paid for 19 of those 20 weeks.
Shared parental pay is only available to the mother/primary adopter if she is entitled to receive maternity pay or adoption pay. However if the mother is entitled to maternity allowance then the other parent may be entitled to ShPP even though the mother does not qualify for it.
In order to be entitled to ShPP each parent must satisfy the continuity of employment test and also have earnings not less than the lower earnings limit in the 8 weeks leading up to the 15th week before the expected week of child birth.
If we offer enhanced maternity pay do we need to offer enhanced ShPP?
It is possible that a failure to match the policy on enhanced maternity pay with a policy offering enhanced ShPP could amount to indirect sex discrimination and we would recommend that employers take advice on this point.