Shared Parental Leave: Steps for UK Employers

by Morgan Lewis

UK employers have four months to prepare for the Shared Parental Leave Regulations coming into force.

The UK’s Shared Parental Leave Regulations 2014 (the Regulations) are due to take effect on 1 December 2014. Shared Parental Leave (SPL) and Statutory Shared Parental Pay (ShPP) will be introduced for eligible employees starting 5 April 2015, and Additional Paternity Leave and Pay will be abolished.

Employees who became pregnant from July 2014 onward (along with the babies’ fathers or mothers’ partners) could be eligible to take advantage of the new SPL rights, and employers may soon receive queries on this topic. In addition, starting January 2015, employers may begin to receive notices from employees of their intention to take SPL. Consequently, employers need to begin preparing now for this new legislation.

How will SPL work in practice?

Eligible employees with babies due or who plan to adopt a child on or after 5 April 2015, or intended parents in surrogacy who meet certain criteria, will be able to take advantage of the new SPL rights. They may also choose how they will share the statutory leave period and the statutory pay between themselves and their spouses/partners/civil partners (subject to that person also meeting the necessary eligibility criteria).

In birth cases, all mothers will still be required to take two weeks of compulsory maternity leave after their child’s birth and may request to start SPL from the beginning of the third week after childbirth. Assuming a mother has not chosen to start her maternity leave early, she and the baby’s father (or her partner) will then be entitled to share the remaining 50 weeks of SPL and 37 weeks of ShPP. In all non-birth scenarios, eligible employees are able to share the full 52 weeks of SPL and 39 weeks of ShPP.

Employees will be permitted to take SPL in either one continuous block or, provided their employer agrees, as a series of separate leave periods. Therefore, couples could decide to take their leaves at the same time and effectively split the SPL and ShPP evenly between each partner. Alternatively, one of the employees could request a continuous block of leave, with the other employee requesting shorter blocks of leave throughout their partner’s block of leave. Employees may also request short blocks of leave and take these blocks separately, interchanging their childcare responsibilities.

Requests for discontinuous blocks of leave will likely prove to be unattractive or simply unworkable for many employers because they could be disruptive to the employer’s business and may result in difficulties in arranging appropriate cover during the periods when an employee is on SPL. In addition, the employer will also need to ensure that each employee’s return to work is managed appropriately in between their periods of SPL. If an employer does not agree to an SPL request, the default position is that employees should take their leaves in a continuous block, starting from the initial date provided by the employee. However, employers could still face up to three different requests for SPL or changes to an employee’s pattern of SPL before a final SPL pattern is set.

New Policies and Procedures

Employers should prepare an SPL policy and consider which other internal procedures may be required to effectively manage the additional administrative burdens that the SPL regime will create. These burdens will include processing requests for SPL in the prescribed eight-week period, considering whether requests for discontinuous periods of leave can be accommodated, and potentially requesting additional information from employees about their spouses’/partners’ proposed working patterns to ensure that the entitlement to SPL is not abused.

In addition, employers may wish to factor in some informal discussions with their employees to identify, at an early stage, those who intend to take SPL. This will work best where employees plan to take maternity leave or will be the primary adopters, as employers are likely to have more notice and can more naturally raise the issue of SPL during discussions about leave arrangements. However, an employer should also discuss SPL with employees who it knows are fathers-to-be and secondary adopters to identify whether such employees intend to take SPL and, if so, when.

Employers will also need to update their existing maternity, adoption, and paternity policies to reflect the new SPL legislation.

To pay or not to pay?

A key consideration for employers is whether they will offer any enhanced contractual ShPP.

Some commentators have suggested that employers that offer enhanced maternity/adoption pay will be guilty of unlawful discrimination if they elect not to replicate that enhanced pay for employees who take SPL. However, a strong argument can be made that SPL is distinguished from maternity/adoption leave. Therefore, as long as male and female employees who take SPL are treated in the same way, this approach will be permissible. That said, such an approach could discourage women from taking SPL before they exhaust their enhanced maternity/adoption pay and, ultimately, seems to contradict the main aim of introducing SPL, which is to encourage a more flexible and, crucially, shared approach to parenting. It remains to be seen if there will be any changes to the legislation in this regard.

Another option open to employers that currently offer enhanced maternity/adoption pay is to scrap such enhancements altogether. This approach would clearly have a potentially adverse effect on employee and public relations and is therefore likely to be viewed as unpalatable by many employers.

If an employer anticipates a low takeup of SPL, then offering enhanced SPL may be a more attractive option because it could assist with changing workplace culture and would present well to existing employees and potential recruits. However, if an employer offers enhanced ShPP when others do not, it runs the risk that its employees are more likely to take SPL (and enjoy the benefit of enhanced pay) when they previously would not have considered doing so.

Rights During and After SPL

Employers will need to ensure that their managers are prepared to handle pay reviews, bonus awards, performance management, and performance reviews for all employees who take SPL in a fair and non-discriminatory manner. These issues will become more complicated for employees who take discontinuous periods of leave. In addition, employees on SPL will be entitled to take up to 20 “shared parental leave in touch” (SPLIT) days, subject to their employer agreeing. These SPLIT days are intended to work in the same way as the 10 “keeping in touch” (KIT) days, which are available for employees who take other forms of statutory leave, and will be available to each employee who takes SPL (in addition to KIT days). Employers will need to manage the SPLIT days carefully to ensure that they are beneficial for both the employee and employer.

Employers will also need to manage employees’ rights to return to work, which vary depending on how much leave the employee has taken. If an employee has taken up to 26 weeks of SPL—or a combination of maternity/paternity, adoption, or parental leave and SPL that totals 26 weeks or less—the employee will have the right to return to the same job. However, employees who return to work after taking more than 26 weeks of SPL—or a combination of maternity/paternity, adoption, or paternal leave and SPL that is more than 26 weeks—will only have the right to return to the same job if it is reasonably practicable for the employer to allow them to do so. If it is not, employees will be entitled to return to another job that is both suitable for them and appropriate under the circumstances.

Flexible Working

If employees opt to take SPL, employers may also see an increase in the number of flexible working requests they receive. Although employers will retain the ability to reject such requests, they should ensure that requests from male and female employees are treated in the same way to avoid any discrimination issues.

Further Guidance

In-depth guidance and training courses are due to be released by the Advisory, Conciliation and Arbitration Service (ACAS) in autumn 2014, and further government guidance and commentary on the Regulations and SPL rights can be expected. Although these may give employers some additional tips and set out best practice, it is advisable for employers to commence their preparations without delay.

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.

© Morgan Lewis | Attorney Advertising

Written by:

Morgan Lewis

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