Is it good to share?

New Shared Parental Leave (SPL) and Statutory Shared Parental Pay (ShPP) rules allow eligible employees to share up to 50 weeks' leave and 39 weeks' pay in the year following a child's birth or adoption.  These new rights apply in respect of children born/placed for adoption on or after 5 April 2015.  Unlike maternity leave, eligible employees need not take SPL as one consecutive period.  In addition, both parents may potentially take leave at the same time.

How does SPL affect other types of leave?

SPL is optional.  If a child's parents choose not to take SPL, a mother's right to take 52 weeks' maternity leave is unaffected.  The two week period following childbirth remains compulsory leave, and the child’s mother must therefore take maternity leave over this period.  The child's father remains entitled to two weeks' Ordinary Paternity Leave.  Following the introduction of SPL, Additional Paternity Leave is abolished.

When can SPL be taken and how much leave is available?

SPL must be taken within the year after a child's birth or placement for adoption.  The earliest SPL can commence is two weeks after the child's birth (as a result of the two week period of compulsory maternity leave). 50 weeks' SPL is available.

Who is eligible?

SPL is available to the mother of the child and either the father or the person who at the date of the child’s birth is the mother’s spouse, civil partner or partner.  For the purposes of SPL a "partner" in relation to the mother is defined as the person who lives with the mother in an "enduring family relationship" but is not the mother's child, parent, grandchild, grandparent, sibling, aunt, uncle, niece or nephew. 

For the mother to qualify for SPL she must be entitled to statutory maternity leave, have the main responsibility for the care of the child at the date of the child's birth and satisfy the continuity of employment test.  In addition, the father/partner with whom she shares the main responsibility for caring for the child must satisfy the employment and earnings test.

Identical but reciprocal qualifications apply to the father/partner - he must have the main responsibility for the care of the child at the date of the child's birth and satisfy the continuity of employment test.  In addition, the mother/partner with whom he shares the main responsibility for caring for the child must satisfy the employment and earnings test and be entitled to statutory maternity leave, statutory maternity pay or maternity allowance.

To satisfy the continuity of employment test the employee must have been continuously employed for no less than 26 weeks up to and including the 15th week before the expected week of childbirth and remain in continuous employment until the week before any SPL is due to start.

To satisfy the employment and earnings test, the employee must have been employed for a total of 26 weeks (not necessarily continuously) in the 66 weeks immediately preceding the expected week of childbirth and have earned an average of £30 a week in 13 of those weeks. 

Who checks?

It is the employee's obligation to check their eligibility for SPL and/or ShPP.  The employee must provide a written declaration to his/her employer confirming eligibility together with a declaration from the co-parent that he/she meets the employment and earnings test and consents to the employee making the application for SPL/ ShPP.  

The employer is not obliged to verify this information.  However, an employer may request a copy of the child's birth certificate and/or the name and address of the other parent's employer within 14 days of the entitlement and intention notice detailed below.  

What needs to happen to take SPL?

In order to take SPL, three steps are required:

• First, the child's mother must curtail her maternity leave.  She may do this either by serving a leave curtailment notice (which must state the end date of maternity leave) or returning to work before the end of her maternity leave.  If she serves a leave curtailment notice, the father/partner will then be able to take SPL at the same time as the mother (so long as, in total, their combined periods of SPL do not exceed whichever is the lower of the balance of the mother's maternity leave or 50 weeks).  A leave curtailment notice cannot be revoked unless the employee discovers neither she nor her partner is entitled to SPL or it is served before the birth of the child or her partner dies.
• Second, the employee must give notice to his/her employer of his/her entitlement and intention to take SPL. This notice is a non-binding indication of how and when the employee intends to take SPL - including the start and end dates of each period of leave.  The notice must be provided at least 8 weeks before the proposed commencement of the period of SPL. 
• Third, the employee must provide a period of leave notice.  The notice must be provided at least 8 weeks before the proposed commencement of the period of SPL.

How may SPL be taken?

SPL may be taken in discontinuous blocks.  The maximum is three blocks of leave per person (although an employer can agree more).  Each period of SPL must be taken in blocks of complete weeks.  An employer cannot refuse to allow an employee to take the leave continuously.  However, an employer may refuse a request for discontinuous periods of leave.  The employer has 14 days to consider and respond to such a request and may agree or propose alternative dates for the period of leave or refuse the periods of leave requested without proposing alternative dates.  The employer does not have to give grounds for refusal. If the employer refuses the request for discontinuous leave, the employee may take the leave as one continuous block or has until the 15th day after the notice was given to the employer to retract the notice. 

What is ShPP and who is entitled to it?

ShPP will be available where a mother is entitled to Statutory Maternity Pay (SMP) or Maternity Allowance. To trigger ShPP, the mother must give notice to reduce that entitlement below 39 weeks.  ShPP is then available for the balance of the 39 week period if the employee in question satisfies the eligibility test.  ShPP is currently paid at a flat rate of £139.58 a week or 90% of earnings, whichever is lower.  Unlike SMP, there is no higher rate in the first six weeks of leave.  As a result, couples are unlikely to wish to take SPL and therefore ShPP, until the enhanced rate of SMP has been exhausted.

To qualify for ShPP either (a) the employee must be entitled to SMP or (b) the employee qualifies for Statutory Paternity Pay and has a partner who qualifies for SMP.  In addition, the employee must have earned not less than the lower earnings limit in the relevant period (usually the 8 weeks before the qualifying week).  

How is ShPP triggered?

For either parent to claim ShPP, the mother must give notice to reduce or end her entitlement to SMP.  At least 8 weeks before the beginning of the first period in respect of which the parent intends to claim ShPP he/she must:

• Provide the following details in writing:
  • his/her name;
  • the total number of weeks for which the mother/co-parent would be entitled to ShPP;
  • the number of weeks of that total in respect of which the mother intends to claim ShPP in respect of the child;
  • the number of weeks of that total in respect of which the co-parent intends to claim ShPP in respect of the child;
  • the period which the mother intends to claim ShPP in respect of the child; and
  • the EWC and child’s date of birth.
• Provide a written declaration which he/she has signed confirming:
  • the information is correct;
  • he/she meets the criteria for ShPP; and
  • that he/she will immediately inform her employer if he/she ceases to be eligible.
• Provide a written declaration signed by the co-parent by which the co-parent:
  • consents to the claim for ShPP;
  • confirms he/she satisfies the eligibility criteria;
  • states his/her name, address and NI number; and
  • consents to the applicant’s employer processing the information provided.

Whomever is making the application, the mother must also provide a signed written declaration confirming the date on which her maternity pay period or maternity allowance period in respect of the child began and the number of weeks by which it is, or will be reduced.

Rights during SPL

An employee’s rights during SPL are similar to those enjoyed by mothers on maternity leave.  In summary, the employee is entitled to all his/her usual terms and conditions save for those relating to remuneration. This means that employees absent on SPL will continue to accrue annual holiday and be entitled to benefits such as health insurance and their company car.  Like maternity leave, holiday cannot be taken during SPL so the employee should be permitted to take the leave before or after SPL or carry this holiday over.  It is unlawful to subject an employee to a detriment because (a) he/she took or sought to take or made use of the benefits of SPL (b) the employer believed he/she was likely to take SPL or (c) the employee undertook or considered undertaking work or refused to undertake work during SPL (as permitted by the SPL regulations).  Finally an employee’s dismissal will be automatically unfair if the reason or principal reason for the dismissal is connected with any of those grounds.

Rights upon returning to work

An employee’s rights on returning to work after SPL are similar to those enjoyed by mothers returning from maternity leave.  Where an employee returns to work after a period of SPL which (when added to other relevant statutory leave) is 26 weeks or less, the employee has the right to return to the same job in which they were employed before the absence.  

If the period of leave exceeds 26 weeks (or the period of SPL was the last of two or more consecutive periods of relevant statutory leave which included more than four weeks of parental leave, additional maternity leave or additional adoption leave) the employee is entitled to return to the same job unless it is not reasonably practicable.  In that case, the employee is entitled to return to another job which is both suitable and appropriate for him/her to do in the circumstances.  

The impact?

It is impossible to predict the number of employees likely to take SPL.  The flexibility for taking and splitting SPL means that there is unlikely to be a set pattern.  If SPL does become popular, however, it may well mean that co-parents are absent for extended periods – something which, to date, has been relatively unusual.  It also means that women may spend less time in total away from work or dip in and out – potentially making the transition back to work from maternity leave/SPL easier for both employee and employer.   

Whether or not SPL proves to be popular, employers need to be ready to consider employees' queries.  This will entail training for the HR managers expected to deal with any requests and the preparation of an SPL and ShPP policy, as well as potentially amending existing maternity and adoption leave policies.  For ease and clarity it would also be sensible for employers to develop precedents for the various notices required, including a maternity leave curtailment notice, a notice of entitlement and intention and a notice to take SPL.