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Employers’ guide: shared parental leave

Shared Parental Leave (SPL) and Statutory Shared Parental Pay (ShPP) may not be something that you deal with frequently as an employer, but it is critical that you are aware of and understand the rights of employees when SPL is requested.

SPL and ShPP can be complicated so we recommend that you have a clear idea of how you will deal with these requests before they are made, preferably in the form of a written Shared Parental Leave and Pay Policy.

If you would like assistance with drafting or updating this type of policy, our specialist employment law solicitors would be happy to help. Meanwhile, below is a guide which we hope you will find helpful in explaining how SPL and ShPP operate.

What is Shared Parental Leave (SPL)?

SPL allows eligible employees who are parents a new way of taking leave during their child’s first year, or the first year of placement, in the case of adoption. SPL replaced Additional Paternity Leave and allows parents more flexibility when looking at how to take leave, sharing this between two parents in the first year with their child.

This means that Maternity Leave (ML) or Adoption Leave (AL) can effectively be traded for SPL, which can be shared between the mother and her partner. So long as they qualify, parents can spend up to 6 months off work together or stagger their leave and pay so that one of them is always at home with their child in the first year.

SPL is not to be confused with parental leave, which is a type of unpaid leave that a parent of any child can take for up to 18 weeks.

When was shared parental leave introduced in the UK?

Under the Children and Families Act 2014, the Shared Parental Leave scheme came into force on 1st December 2014 and first applied where the child's expected week of childbirth was on or after 5 April 2015, or where the child was placed for adoption on or after that date. SPL is a possibility for parents after the introduction of the scheme, if other eligibility criteria are met.

Who is eligible? And how does shared parental leave work?

On the birth of a child, the child’s mother (M) can choose to take SPL by being absent from work to look after the child if both she and the child’s father, mother’s spouse, civil partner or partner (P) are eligible under the following criteria.

For M to take Shared Parental Leave she must:

  • Still be in employment
  • Have been an employee with at least 26 weeks’ continuous service at the end of the 15th week before the Expected Week of Childbirth (EWC)
  • Have the main responsibility of caring for the child (apart from P’s responsibilities)
  • Be entitled to Statutory Maternity Leave (SML)
  • Return to work or serve a maternity leave curtailment notice at least 8 weeks before she would like her maternity leave to end
  • Provide her employer with a notice of her intention to take SPL and entitlement for this
  • A copy of the child’s birth certificate and name and address of P’s employer (if requested by her employer)
  • Provide the employer with a written period of leave notice by 8 weeks before the start date of the leave, setting out the start and end dates of each period of SPL.

P must also satisfy the following in order for M to take SPL:

  • P must have been employed or self-employed for at least 26 of the last 66 weeks earning at least £30 per week on average for 13 of those weeks
  • P must have the main responsibility for the care of the child at the date of the child’s birth (apart from M’s responsibilities).

If P would like to take SPL, P must:

  • Have at least 26 weeks’ continuous employment with their employer at the end of the 15th week before the EWC
  • Have the main caring responsibility for the child at the date of the child’s birth (apart from the responsibilities of M)
  • Provide their employer with a notice of their intention to take SPL and entitlement for this
  • A copy of the child’s birth certificate and name and address of M’s employer (if requested by their employer)
  • Provide the employer with a written period of leave notice by 8 weeks before the start date of the leave which sets out the start and end dates of each period of SPL requested in that notice.

M must also satisfy the following conditions for P to take SML:

  • M must have been employed or self-employed for at least 26 of the last 66 weeks earning at least £30 per week on average for 13 of those weeks
  • M must have the main responsibility for the care of the child at the date of the child’s birth (apart from P’s responsibilities)
  • M must be entitled to SML, SMP or maternity allowance in respect of the child
  • M must have curtailed her SML by returning to work or serving a curtailment notice or have curtailed her SMP pay period or maternity allowance period if M did not qualify for SML.

What about shared parental leave and adoption?

In the case of adoptions, if a ‘primary adopter’ is an employee entitled to statutory adoption leave they may curtail it to take SPL, if the other adoptive parent is or was recently in paid work. If the other adoptive parent is an employee with qualifying service (26 weeks of continuous service by the 15th week before the EWC) they may also take SPL.

Where the primary adopter is not entitled to statutory adoption but is entitled to statutory adoption pay (SAP) they will not be entitled to SPL. But the other adoptive parent may be, if they are an employee with qualifying service, and the primary adopter curtails their SAP period early.

Instead of a birth certificate, the employer is likely to ask for adoption paperwork as proof of the date of placement and this should be provided by the adoptive parent(s) trying to take SPL.

How long is Shared Parental Leave?

The Shared Parental Leave scheme means that up to 50 weeks of SPL and 37 weeks of ShPP is available for eligible parents to take or share. (Two weeks compulsory maternity leave must be taken by the mother after the birth of a baby and 4 weeks in the case of some factory or manual jobs).

The total maximum SPL will be 52 weeks minus the mother's Maternity Leave (ML) period. If the mother is not entitled to ML, it is 52 weeks minus the Statutory Maternity Pay (SMP) or Maternity Allowance (MA) period.

A mother or primary adopter can choose to end their maternity or adoption leave, and share the untaken leave with the other parent, as SPL instead. This means that mothers and primary adopters can return to work before the end of their leave but can pass it to their partner to take that time to spend with their child, in their place. SPL can be taken consecutively or concurrently, as long as the total time taken is not more than is jointly available to the mother and her partner.

SPL works best where there is a clear, non-discriminatory policy to follow and there is early dialogue between the employer and employee about the employee’s SPL proposal.

What is the notification process for Shared Parental Leave?

The notification process can be quite complicated, as there are three different types of notice involved with SPL:

  1. Curtailment notice: If the mother would like for her and/or her partner to take SPL she will need to give her employer an initial notification of her entitlement and intention to take SPL by ‘curtailing’ or reducing her maternity or adoption leave and/or pay entitlement. She should state on that notice when she would like that leave/pay to end (and where she does not qualify for maternity leave or pay, when she would like her maternity allowance period or pay to end). This notice cannot usually be withdrawn, withdrawal of the notice is only possible if neither parent qualifies for SPL or ShPP, or if notice was given before the birth it may be withdrawn without a reason up to six weeks’ after the birth; or where the mother’s partner dies.
  2. Notice of entitlement: This notice is a not binding on the employer or employee making it flexible so that the employee does not have to take their leave on the dates stated in the notice of entitlement. But the employer has an idea of what it will be asked to consider. At the same time as the above notice is given, employees must give eight weeks’ notice of their intention to take a period of SPL (including two weeks to discuss the pattern of SPL proposed) and both parents must sign this notice. The notice must include:
    1. The number of weeks of maternity/adoption leave/pay the mother took or will have taken, the maximum amount of leave available as SPL
    2. How SPL is to be divided
    3. An indication of when the employee plans to take their leave
    4. A declaration from the other parent stating that he or she meets the employment and earnings test and that he or she shares the main responsibility for the child with the employee, and agrees to the employee taking the number of weeks SPL stated in the notice.

      Note: Where there is a joint entitlement to Shared Parental Leave, both parents will need to notify their employers of how much leave they intend to take.
  3. Notice to book leave: Employees must provide their employer with a declaration in writing at least eight weeks before the start of a leave period telling the employer what leave the employee intends to take. Each eligible parent can give their employer up to three separate notices booking or varying leave. Each notice can be for a block of leave or for a pattern of multiple ‘discontinuous’ blocks of leave. Once all three notices have been ‘used up’ the employer does not have to agree to any further changes, this would be by agreement only, unless the employee’s contract of employment or employer’s own policy allows for further variations without agreement.

To vary SPL between parents, both parents must notify each employer at least eight weeks before the varied dates in writing, stating their original leave dates; that they are changing it and how they now intend to take the leave.

The exception to this is when a child is born early, and the employee has given notice that they will take SPL within the first eight weeks of the due date. Both parents must then sign the notice to confirm their agreement to the variation. A notice to vary leave will usually count as one of the three notices and must also be made if SPL that was booked is no longer required.

The same steps as above are required to be followed to claim ShPP (but can be included in the notice to curtail and notice of entitlement for SPL).

It is important to note that a mother or primary adopter just need to have given notice to curtail their maternity or adoption entitlements and do not have to have actually ended their maternity or adoption entitlement for SPL to start for their partner.

How should an employer respond to a notice to take SPL?

As a result of a Shared Parental Leave notice there will be four possible responses:

  1. Confirmation. An employer should confirm their agreement to a continuous leave notification or acceptance of a discontinuous leave notification in writing within 14 days of receiving this from the employee, confirming the dates of SPL.
  2. Modification. An employer and employee could agree a modification to a SPL request, such as a different discontinuous leave pattern or by changing the dates for the SPL. An employee should not be pressurised into accepting any changes to their SPL request, but if a change is agreed the employer should confirm this in writing within 14 days. Where an employer proposes a variation, this does not count as another notification by the employee.
  3. Negotiation. If an employer does not agree to a notification for discontinuous leave, they could meet with the employee to discuss and if the proposal is still unacceptable the employer should write to the employee within 14 days, providing alternative dates, confirmation of the employer’s refusal, and information on the employee’s options. Again, even if no agreement is reached it is important that the employer does not use undue influence to pressurise an employee into changing their SPL request.
  4. Whilst this option should be avoided, an employer might choose not to respond to an SPL notification.

If 3 or 4 apply, then the employee can withdraw their notification before 15 days from the date of the original notification, so that this does not count as one of their three notifications.

If the employee does not withdraw their application they have the right to take SPL in one continuous block and can choose when SPL starts as long as the start date is within 19 days of the date the notification was given to the employer and not before the start date on the original notification. If there is no further notification the continuous block of SPL must start on the date in the original notification.

After receiving the notice, the employer can, within 14 days, ask for the name and address of the other parents’ employer and a copy of the child’s birth certificate or adoption paperwork.

Can an employer refuse an employee’s Shared Parental Leave?

As stated above, if a parent asks for a continuous block of SPL in the prescribed manner giving sufficient notice and is eligible, the employer is required to agree to it and cannot refuse it.

However, if the parent notifies their employer that they would like to take discontinuous blocks of leave, the employer can refuse and require all the weeks of leave in the notice to be taken in a single continuous block.

There is no requirement for an employer to offer more than the statutory minimum. But if you offer enhanced maternity rights, giving mothers maternity pay above the statutory minimum, for example 26 weeks' full pay followed by 13 weeks SMP, you may want to match maternity enhancements in any SPL policy for consistency. Although there is no legal requirement to do so.

There is however a requirement within an SPL policy to treat men and women equally and pay them at the same rate in the same circumstances, to avoid sex discrimination claims. 

Can Shared Parental Leave be split into blocks of leave?

Whilst there is no legal right to split Shared Parental Leave, an employee can split their SPL into up to three separate blocks instead of taking it all in one go. This should be with the agreement of their employer and can occur even if they are not sharing the leave with their partner. An employer can even agree that the employee can split their block of SPL into shorter periods so long as these last at least one week each.

If both parents are taking SPL, they can choose to take their leave at the same time as each other or at different time, but the employee must give their employer at least eight weeks’ written notice before each block of leave starts.

How much are staff paid during SPL?

Unless there is an enhanced payment offered in an employee’s contract of employment or a company’s SPL policy, ShPP is paid at a statutory weekly rate.

This rate is currently set at £148.68 a week or 90% of an employee’s average weekly earnings, whichever is lower.

This is the same as SMP apart from there is no cap on the 90% pay offered to the mother on maternity leave during the first 6 weeks of SMP, and so pay is more generous during that early period of maternity leave than SPL.

What HR records do you need to keep regarding SPL and ShPP?

It is helpful for you to keep the following information in the employee’s HR file, regarding Shared Parental Leave:

  • The relevant employee’s contract of employment and updated SPL policy if applicable
  • Any notices provided by the employee and deadlines for response for you and the employee
  • Evidence regarding entitlement to SPL such as birth certificate, adoption papers or name and address of the mother’s or partner’s workplace

You must also keep records for HMRC for at least three years from the end of the tax year they relate to, in respect of ShPP, including:

  • The evidence provided by the employee to show that they’re eligible for ShPP
  • The date the employee’s ShPP began
  • Your ShPP payments, including dates
  • The ShPP you’ve reclaimed
  • Any weeks you did not pay and why

How is Shared Parental Leave affected by exceptional circumstances?

There are some exceptional circumstances which can affect Share Parental Leave.

Where an employee has booked SPL, but they are no longer responsible for caring for the child (unless it is because their child has died), their entitlement to both SPL and ShPP will end immediately and they must tell their employer.

If either parent dies during the child’s first year and the other parent is taking, or is entitled to SPL, they continue to be eligible and are eligible for the other parent’s SPL.

If a child dies before the parents have submitted a notice of entitlement to take SPL, they cannot take it, but the mother can still take maternity leave.

If the parents have notified an employer of an intention to take SPL before the child dies and they have booked leave, they are entitled to take that booked leave. No further notices to book leave can be submitted and only one variation notice can be given to reduce or rearrange a period of leave. An employee who is away on SPL may cancel the remainder and return to work by giving their employer eight weeks’ notice of their return to work.

What support should you provide during Shared Parental Leave in Touch (SPLIT) days?

In the same way as mothers on maternity leave are entitled to up to 20 ‘keeping in touch’ (KIT) days, under the SPL scheme an eligible mother and father will have up to 20 SPLIT days each. This means that each parent can work for their current employer for up to 20 days without bringing the SPL to an end.

These days can be on a part-time basis and can be used for training, meetings or working before returning to work. These days are in addition to the mother’s entitlement to 10 KIT days during her maternity leave. But the employer does not have to offer SPLIT days and employees do not have to work these days if they are offered.

Discussions about how SPLIT days will work, payment and contact during SPL should be a priority for employers and employees before leave starts. This will ensure both parties are in agreement and understand expectations and how SPL will operate at an early stage.

What other employment protections and rights do employees on SPL have?

Employers should be aware of the other rights that those on SPL are entitled to, so that they do not fall foul of employment law in this area.

The right to return

This is a right for the employee to return to the same seniority, pension rights and similar rights as they would have been if there had been no absence, on terms and conditions not less favourable than those which would have applied if there had been no absence.

The employee should expect to return to the role they were employed to do under their contract in the capacity and place in which they worked immediately before their absence on SPL.

But an employee's rights on return to work after taking SPL will depend on how much SPL they have taken, either on its own or together with any period of ‘relevant statutory leave’ (meaning SPL, maternity, paternity or adoption leave). If the period of time spent on relevant statutory leave is 26 weeks or less, the employee will generally be entitled to return to the same job as they held prior to the SPL (however, see Redundancy below).

If the employee takes more than 26 weeks of SPL or if SPL was the last of two or more consecutive periods of relevant statutory leave (which included normal parental leave of more than four weeks, additional maternity leave, or additional adoption leave) it may not be reasonably practicable for the employee to return to the job they performed before their absence.

In this case, the employee will be entitled to return to another job which is both suitable for them and appropriate for them to do in the circumstances. This is less of an obligation for an employer than if an employee only takes SPL and for less than 26 weeks.

Protection from detriment

An employee is entitled not to be subjected to any detriment from 1 December 2014 onwards by any act. They are also not to be subjected to deliberate omission by an employer because the employee took, sought to take, or made use of the benefits of, SPL, or the employer believed the employee was likely to take SPL. There is also protection from detriment where an employee undertook, considered undertaking, or refused to undertake work on a SPLIT day.

Bonuses

Whilst the same protections relating to mothers on maternity leave and bonuses do not apply to those on SPL, a reduction in bonus which exceeds a pro-rata reduction for taking SPL could amount to a detriment under the Shared Parental Leave Regulations.

Protection from dismissal

If an employee’s termination of employment occurs, an employee would receive protection from being automatically unfairly dismissed if the reason, or principal reason, for the dismissal is connected with:

  • The employee taking, seeking to take, or making use of the benefits of, SPL.
  • The employer believing that the employee was likely to take SPL.
  • The employee undertaking, considering undertaking, or refusing to undertake work on a SPLIT day; or
  • The reason, or principal reason, for the dismissal is that the employee is redundant and the requirements regarding suitable alternative vacancies have not been complied with.

Redundancy

Where it is not practicable for the employer to continue to employ the employee under their existing contract because their role is redundant, the right to return to the same job becomes the right to return to a suitable alternative vacancy. The right to return to a suitable alternative vacancy should be with the employer, the employer's successor, or an associated employer before the end of their existing contract and take effect immediately after the end of their previous contract of employment. If you are unsure as to whether there is a ‘suitable alternative’ role, please contact our specialist employment solicitors for advice.

This protects employees on Shared Parental Leave in the same way as those on maternity or adoption leave, giving them priority over other employees at risk of redundancy. If the employee refuses a suitable offer, their dismissal for redundancy will probably be fair. If an employee unreasonably refuses the offer, they will also lose their right to a redundancy payment.

There is an ongoing consultation relating to legislation extending redundancy protection for a period after return to work from Shared Parental Leave. It is likely that additional protection from redundancy for six months after the end of maternity leave or adoption leave will be introduced, but as SPL can be taken over much shorter periods of time the protection of those returning from SPL is likely to be shorter.


What next?

If you need to put a Shared Parental Leave policy in place or would like to know your rights as an employer, get in touch with our employment law specialists on 0800 689 1700, email us at enquiries@hjsolicitors.co.uk or fill out the short form below with your enquiry.

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