UK: Shared Parental Leave – The Key Provisions

The new shared parental leave system applies to parents who meet the eligibility criteria and whose expected week of childbirth begins on or after 5 April 2015, or who are placed for adoption from that date.

If you have not yet finalised your shared parental leave policy, here is a list of key questions you should consider:

  • If you currently provide enhanced maternity pay, will the level of pay remain the same?
  • Will you provide enhanced shared parental pay – if so, will this be at the same level as enhanced maternity pay? What about return to work bonuses?
  • What systems are needed to minimise abuse and to ensure correct pay and leave is given? For example, verifying evidence of eligibility and monitoring leave taken.
  • How will you ensure fair treatment of requests for discontinuous leave to reduce the risk of discrimination claims?
  • What disciplinary action, if any, will be taken for abusing the system, for example, if a parent on SPL is not caring for their child and, for example, is instead on holiday with friends?

The detail: Key points to know ...

  • For either parent to be eligible for SPL, the mother must give notice giving her intention to end her SML at least 8 weeks before the first period of SPL
  • SML cannot end until at least 2 weeks after the birth
  • There is no continuous employment requirement for SML or (from 5 April 2015) AL, but employees taking SPL must have 26 weeks' continuous employment at the 15th week before the EWC
  • There are different eligibility criteria for SPL and SSPP
  • Each parent must qualify for SPL and SSPP in their own right
  • In some cases, only the father/mother's partner will qualify for SPL (e.g. where the mother is a worker or is self-employed)
  • SSPP is paid at the same rate as the lower rate of SMP (GBP 139.58 per week from 5 April 2015)
  • Reasons for agreeing/ refusing SPL requests should be documented carefully
  • Each parent on SPL can take 20 "SPLIT" days, in addition to the 10 KIT days for SML/AL
  • Rights to statutory unpaid parental leave are unaffected by SPL (18 weeks' leave until the child is 18 (from 5 April 2015))
  • Ordinary paternity leave will remain but APL will go

Shared Parental Leave – the key provisions

  • Eligible parents can take up to 52 weeks' SPL:
    • First 2 weeks are compulsory maternity leave/AL
    • Remaining 50 weeks are available for sharing
    • Leave can be taken consecutively or concurrently – but the total time taken by both parents cannot exceed 52 weeks
    • Leave can be taken in a minimum of one week blocks (part of a week is treated as a whole week)
    • Cut-off point for taking SPL is 52 weeks from the birth/adoption
    • Default position for mothers: 52 weeks' maternity leave and 39 weeks' pay
    • Fathers will still be entitled to 2 weeks' ordinary paternity leave (unless they have already taken SPL)
  • Employees must provide a non-binding indication of their expected pattern of leave 8 weeks before the start date of the first period of SPL
  • A binding notice of leave (which can be given at the same time as the non-binding notice) must also be given at least 8 weeks before the start date of the period of SPL
  • That notice is binding unless:
    • Parent discovers they do not qualify for SPL
    • Mother gave notice before the birth of the child – she can change her mind up to 6 weeks after the birth
  • Parents must agree the timing and periods of leave with their employer
  • If they cannot agree, it will default to a single block of leave, to commence on a date specified by the employee in the binding notice, or the employee can withdraw the request
  • Each parent can make a maximum of 3 notifications for leave, or changes to periods of leave – but the employer and employee can mutually agree additional changes

Qualifying conditions – Shared Parental Leave

  • To qualify for SPL, the mother and father must:
    • Have caring responsibility for the child throughout SPL but starting at the child's birth or placement for adoption
    • Have given notice to their employer of their entitlement to SPL
    • Have complied with their respective employer's request for evidence
    • Have given the required notice

There is a 2 stage eligibility test for SPL:

Stage 1: economic activity test – for your employee's partner

An individual's partner must have:

  • Worked for any 26 out of the 66 weeks before the EWC, and
  • Earned at least GBP 30 gross salary per week for any 13 of those weeks
  • Eligibility for SPL for one parent is dependent on the other parent passing the economic activity test

Stage 2: individual test – for your employee

The parent must be employed, and:

  • Have 26 weeks' continuous service with the employer at the 15th week before the EWC
  • Still be working for the same employer when they take SPL

Note: Each parent must qualify for SPL in their own right

  • For the mother to qualify for SPL, she must be entitled to SML, and have issued a notice to curtail that leave
  • For the father to qualify for SPL, the mother must be entitled to either maternity leave or pay (or allowance) and she must have issued a notice curtailing her maternity leave or, if she is not entitled to maternity leave, she must have curtailed her maternity pay/allowance

Notice requirements – Shared Parental Leave

8 weeks before the first period of SPL starts (except if the child is born early), the mother and father must each give their respective employers:

  • Notice:
    • Of their names
    • The start and end dates of any maternity leave taken by the mother
    • The total amount of SPL available
    • The EWC and, as soon as this is known, the child's date of birth or date of placement for adoption
    • How much SPL each parent intends to take
    • The dates the employee intends to take SPL

The father must also give notice of any SMP or maternity allowance received by the mother

  • A declaration signed by the child's father that he is the child's father (birth only), or married to/civil partner/partner of the mother
  • A declaration signed by the employee that
    • They satisfy the qualifying conditions
    • The information is accurate
    • They will immediately inform their employer if they cease to qualify for SPL
  • A declaration signed by the employee's partner, stating:
    • Their name, address and NI number
    • They meet the qualifying conditions
    • They consent to the amount of SPL which the employee intends to claim
    • They will immediately inform the employee if they cease to meet the conditions
    • They consent to the processing of this declaration by the employer

Qualifying conditions – Statutory Shared Parental Pay

  • Employee's average salary for 8 weeks before the 15th week before the EWC must be at least the Lower Earnings Limit (GBP 112 per week from 5 April 2015)
  • Employees must have 26 weeks' continuous employment prior to the 15th week before the EWC

Note: Each parent must qualify for SSPP in their own right

Notice requirements – Statutory Shared Parental Pay

Stage 1: economic activity test – for your employee's partner

  • Notice before SSPP is claimed, of:
    • The number of weeks' SSPP:
      • the employee is entitled to claim
      • the mother intends to claim
      • the father intends to claim
    • Which weeks the employee intends to claim SSPP
  • A declaration signed by the employee that
    • They satisfy the qualifying conditions
    • The information is accurate
    • They will immediately inform their employer if they cease to qualify for SSPP
  • A declaration signed by the employee's partner, stating:
    • Their name, address and NI number
    • They consent to the employee's intended claim for SSPP
    • They meet the qualifying conditions
    • They consent to the processing of this information by the employee's employer
  • The mother's declaration must also specify:
    • The date her maternity pay period/maternity allowance period began and the number of weeks by which it will be reduced

Note: Employers have the option to request further evidence of entitlement to SSPP, i.e. the child's birth certificate, name and address of the partner's employer

Employees' rights and protection

  • Employment terms:
    • Employees on SPL are entitled to the benefit of all contract terms, except pay
  • Right to return to work:
    • Right to return to the same job - for employees returning from any period of maternity, paternity or AL, or SPL
    • Right to return to the same or a similar job – for employees returning after over 26 weeks' leave
  • Protection
    • Automatic unfair dismissal if the dismissal is because of reasons connected to SPL
    • Protection from detriment
    • Enhanced protection on redundancy

Changes to Adoption Leave and Adoption Pay

  • For adopters, 26 weeks' continuous service requirement for AL will be removed
  • The adopter's partner will still be entitled to 2 weeks' statutory paternity leave (unless they have taken paid time off to attend adoption appointments) and provided it is taken before the start of SPL
  • Statutory Adoption Pay will be increased to 90% of normal weekly earnings for the first 6 weeks of AL, bringing it into line with SMP.

Jargon Buster

AL – Adoption Leave
APL - Additional paternity leave
EWC - Expected week of childbirth
KIT - "Keeping in touch"
SML - Statutory maternity leave
SMP - Statutory maternity pay
SPL - Shared parental leave
SSPP - Shared statutory parental pay

Clyde & Co is offering HR professionals and in-house Counsel bespoke training on the new Shared Parental Leave regime, covering its legal background and complexities as well as an explanation of what the changes will mean in practice.  We have also prepared bespoke policies and forms which you can incorporate into your Staff Handbook.  If you are interested to know more, please click here.

Note: in the interest of brevity, this Briefing focuses on the right to SPL upon the birth of a child but similar rules also apply in relation to adoptions. Although this Briefing refers to the child's father, qualifying partners of the child's mother may also be eligible for SPL in certain circumstances.

Further reading

Shared Parental Leave and Pay: Clyde & Co Survey Results
Time off to accompany a pregnant woman to ante-natal appointments
October changes in employment law
UK Update: Flexible working - the new rules
Statutory paternity leave legislation in Hong Kong
Shared parental leave and pay: Clyde & Co survey and other recent developments

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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