Shared parental leave: draft regulations published

by DLA Piper
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Vinita Arora, a partner in our London office, comments: the Government has published draft regulations which will implement a new system of shared parental leave to supplement the current maternity, adoption and paternity leave schemes with effect from April 2015. The shared parental leave scheme will be extremely complex. Employers will need to put new policies in place well in advance of the implementation date.

There are three sets of regulations, the Shared Parental Leave Regulations 2014 (Leave Regulations), the Statutory Shared Parental Pay (General) Regulations 2014 (Pay Regulations) and the Maternity and Adoption Leave (Curtailment of Statutory Rights to Leave) Regulations 2014 (Curtailment Regulations).

In respect of babies with an expected week of childbirth (EWC) beginning on or after 5 April 2015, parents will be able to choose what type of leave to take. Mothers will still be entitled to 52 weeks maternity leave and fathers will still be entitled to two weeks’ ordinary paternity leave. However, if both parents fulfil the eligibility criteria, the parents will be able to give notice to opt to cut short statutory maternity leave and instead take shared parental leave.  Eligible employees will be entitled to a maximum of 52 weeks’ leave and 39 weeks’ statutory pay upon the birth or adoption of a child, which can be shared between the parents either concurrently or separately.

In order to qualify for shared parental leave, the mother must:

  • have 26 weeks’ service
  • have main responsibility for the care of the child (apart from any responsibility of the father’s)
  • have curtailed her statutory maternity leave
  • comply with the notice requirements

In addition, the father must have been engaged in employment as an employed or self-employed earner for 26 of the 66 weeks preceding the EWC and have average weekly earnings above the lower earnings limit.

In order for the father to take shared parental leave, he must:

  • have 26 weeks’ service
  • have main responsibility for the care of the child (apart from any responsibility of the mother’s)
  • comply with the notice requirements

The mother must also have been engaged in employment as an employed or self-employed earner for 26 of the 66 weeks preceding the EWC, have average weekly earnings above the lower earnings limit and have curtailed her statutory maternity leave.

When the mother is on maternity leave, neither parent can take shared parental leave unless the maternity leave is brought to an end early. The Curtailment Regulations set out how leave can be brought to an end by giving at least 8 weeks’ notice in a “leave curtailment notice”. They also set out the circumstances in which a leave curtailment notice can be withdrawn or revoked. Notice can be given before the birth of the child to enable both parents to take shared parental leave immediately after the birth.

Shared parental leave must be taken in blocks of at least a week but can be taken discontinuously. Where the employee requests discontinuous periods of shared parental leave the employer can agree to it, propose alternative dates or refuse the request altogether, in which case the employee will be entitled to one continuous period of leave. Alternatively he or she may withdraw the notice (presumably so that their spouse or partner may take the leave instead). All leave must be taken within 52 weeks of the child’s birth.

The draft rules as to notification are complicated. The employee may be required to give a number of different written notices to the employer particularly if plans regarding leave change.

The Leave Regulations also set out provisions on terms and conditions during leave, the right to return to work, rights on redundancy, and protection from detriment and dismissal, all of which are very similar to the current provisions on maternity, adoption and paternity leave. KIT days will be increased to a maximum of 20 per employee (including any KIT days already taken during maternity leave).

The provisions also apply to adoptive parents where the child is matched or placed for adoption on or after 5 April 2015.

The Pay Regulations set out the eligibility conditions for either parent to claim shared parental pay (SSPP) on the birth or adoption of a child, and the notifications that must be given to the employer in order to qualify. The pay regime is similar to statutory maternity pay, although inherently more complex due to the nature of shared parental leave.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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