Shared Parental Leave Requests – Are you ready ?

It is estimated that approximately 285,000 working couples will benefit from the new shared parental leave regime that came into force in December last year.  This gives rise to obvious questions.  How does it work in practice and how should an employer deal with a request if and when one is received ? 

Although the principle of shared parental leave is simple, the new rules are detailed and complex and have significant implications for both employers and employees. 

The intention behind the new scheme is to allow families more choice with parental care in a child’s first year.  Up until fairly recently, the choices have been limited, with the main choice being maternity leave and pay for mum and a short period of paternity leave and pay for dad. 

Under the new scheme employees retain their rights to maternity leave and paternity leave (with the exception of additional paternity leave which has been abolished).  However, mum will now be able to convert up to 50 weeks of her maternity leave and 37 weeks of her statutory maternity pay into shared parental leave and pay, and share it with her partner.  This gives greater flexibility to employees as they can now apply to take the time off together or separately, in one continuous period or discontinuously.

Naturally, there are rules and procedures that need to be followed, including employee eligibility criteria.  In this article, we aim to provide a simple overview of the new scheme, the practical requirements of the scheme and the steps that employers should be taking to implement it.  We focus primarily on the application of the new scheme in relation to the birth of a child, although the scheme for adopted children is broadly the same. 

So, who benefits from this new scheme ? 

Basically, shared parental leave is available for employees with babies born on or after 5 April 2015.   

Who is eligible for shared parental leave ?

It can be taken by a mother and someone who is either the child’s father or the mother’s spouse, civil partner or partner (as defined in the regulations) and who has the main responsibility for caring for the child.

Certain eligibility criteria have to be satisfied by both parents which vary depending on whether the employee is the mother of the child or the mother’s partner.

How much shared parental leave can be taken ?

The maximum amount of shared parental leave that can be shared between the parents is 50 weeks (or 48 weeks for factory workers).  This is calculated as the mother’s 52 weeks of maternity leave less the two weeks’ compulsory maternity leave (or four weeks’ compulsory maternity leave for factory workers).

When can shared parental leave be taken ?

Any time from the child’s date of birth to the day before the child’s first birthday.  However, mum cannot start shared parental leave until she has completed her period of compulsory maternity leave.

Each parent can take their shared parental leave as one continuous period or up to three discontinuous periods of leave.  It can be for a period as short as a week or as long as the maximum 50 weeks.  Provided that employees give sufficient and proper notice, employers cannot refuse a request for leave.

Are employees on shared parental leave protected in any way ?

Yes.  They have the same protections as those employees on maternity and paternity leave, namely:

·         The employee’s terms and conditions, other than entitlement to remuneration, are preserved during shared parental leave;

·         The employee has the right to return to the same job after shared parental leave if the total aggregate amount of leave taken by the employee is 26 weeks or less;

·         The employee has the right to return to either the same job, or if that is not reasonably practicable, a job that is both suitable and appropriate for the employee to do, in all other cases;

·         It is automatically unfair to dismiss, or select for redundancy, an employee when the reason or principal reason for the dismissal, or selection for redundancy, is connected to the shared parental leave;

·         Employees are entitled not to be subjected to any detriment by an act or failure to act by their employer for a reason connected to shared parental leave;

·         If the employee’s role becomes redundant during shared parental leave, the employee has the same priority in relation to alternative employment as applies to women on maternity leave.

What about Keeping in Touch (“KIT”) days ?

An employee may attend up to 20 shared parental leave KIT days, in addition to the 10 KIT days that a mother may take.

What about pay ?

There is an entitlement to shared parental pay, subject to the employees meeting certain eligibility criteria.  It is paid at the same rate as statutory maternity pay.  The maximum amount of shared parental leave pay that can be shared between the parents is the mother’s 37 or 35 weeks or statutory maternity pay or maternity allowance entitlement (taking into account the periods of compulsory maternity leave).   Parents can choose who will take the shared parental pay.

Can an employer offer enhanced shared parental pay ?

Yes, although this could give rise to legal as well as practical issues for the employer.  For example, a discrimination claim may arise where an employer offers enhanced maternity pay but not enhanced shared parental pay.  Further issues will arise if employers offer enhanced pay for both maternity leave and shared parental leave.  Employers also need to consider the contractual implications of reducing existing levels of enhanced pay. 

What steps should employers now be taking ?

There are a number of steps that employers should be taking.  In particular, employers should:

·         Ensure that those employees responsible for managing the scheme in their workplace are familiar with the rules and requirements of the scheme;

·         Decide on the approach to shared parental leave and shared parental pay, including, their position on enhancements, bearing in mind the potential issues relating to discrimination;

·         Implement a new shared parental leave policy and template notifications for employees to use;

·         Review and, where necessary, amend existing family rights policies, for example, maternity, paternity and adoption policies;

·         Decide how the new policies will be issued to employees; and

·         Inform appropriate employees within the organisation, for example, managers, of the new scheme so that they are aware of it and know what to do in the event of receiving queries or applications from members of their teams.

Given the potential pitfalls of the new scheme for employers, we will be running a seminar on shared parental leave.  The seminar will focus on the more detailed elements of the eligibility and practical requirements of the scheme and will in particular explore the notification obligations of both the mother and partner, both of which are quite complex.  If you would like to register your interest in attending the seminar, or if you would like to talk to us about providing some in-house training to your managers on this topic, then please e-mail Louise Smith on lsmith@tolhurstfisher.com.