The new shared parental leave system has now come in to force, pursuant to the Children and Families Act 2014, and will apply to parents of babies due on or after 5 April 2015.
The new system does not mean that the existing maternity and paternity leave and pay provisions will be repealed, and shared parental leave provisions will not automatically apply.
In order for the shared parental leave rights to kick in, a parent entitled to maternity leave and pay will need to cut short her maternity leave. This can only be done after the mandatory maternity leave period of (usually) two weeks' after childbirth. If more than eight weeks' of maternity leave remain unused, the balance can be split between eligible parents as shared parental leave.
Using Shared Parental Leave
To take advantage of this right, a parent on maternity leave must either return to work (giving notice that their maternity leave period will also come to an end), or serve a 'curtailment notice', bringing their maternity leave to an end before it would otherwise have expired. That will end the maternity leave and maternity pay entitlement. The remaining maternity leave period, and the remaining maternity pay, can then be split between parents, subject to them satisfying the eligibility criteria.
Usually, if maternity leave and pay has been curtailed, the mother cannot revoke the decision, unless the baby has not yet been born, or her partner dies.
Shared Parental Leave Notice
A parent who wants to take up shared parental leave first needs to serve a non binding notice on their employer to state that:
- The parent is entitled to shared parental leave, and
- That the parent plans to take shared parental leave.
The parent will need to set out their relationship with the mother, and give a non binding indication of when they might take the leave. The notice should also confirm the parent's consent to the use of their personal information, and make a declaration that both parents meet the eligibility requirements.
Binding Notice of Shared Parental Leave
The next stage is for the parent to give their employer a binding notice of the dates that the parent intends to take their shared parental leave. This must be at least eight weeks before the leave period is intended to commence, and must be arranged to take place within the first year of the baby's life. It must be taken in blocks of 1 week, and not partial weeks.
A parent can issue up to three binding notices of when they will take their continuous blocks of leave. These three notices cannot lawfully be refused. However, any change to a proposed block of leave requested by a parent will count as a fresh notice, and will be one of that parent's three notices.
Blocks can be alternated between parents, and can be taken simultaneously by both parents.
Parents can also apply for periods of discontinuous leave, for example, one week on, one week off. Their employer must enter into a two week discussion period in relation to such a request. If it is refused, each separate block would need a separate notice, and therefore would be limited to a maximum of three blocks.
Eligibility
In order to be able to claim shared parental leave, both parents must have been employed in the UK for at least 26 of the 66 weeks before the expected week of childbirth, and earn an average of £30 in each 13 week period.
The parent taking the shared parental leave must have 26 weeks' continuous service on the date 14 weeks' before the expected week of childbirth. If the parent is seeking to use up a balance of shared parental leave pay, the parent must have earned an average of £111 per week for the 8 weeks preceding the 14th week before the expected week of childbirth.
Clearly, a mother will count as one parent. The other parent will either be the father of the baby, the mother's spouse or civil partner, or will be in a longstanding relationship with the mother. The other 'parent' cannot be a grandparent.
Protection from Detriment
Eligible parents are protected from detriment for requesting shared parental leave, and also benefit from the same right to return to their roles after up to 26 weeks leave, as in a maternity leave situation.
Keeping in Touch Days
In addition to the 10 keeping in touch (KIT) days a mother on maternity leave can take, during shared parental leave, each parent will be able to take up to 20 shared parental leave in touch days (SPLITs). These days must be paid at the parent's normal rate of pay.
Take up of Shared Parental Leave and Discrimination
It will be extremely interesting to see whether shared parental leave is taken up in the UK, and to assess the impact on current trends relating to working parents. One key consideration will be whether it makes financial sense to take advantage of the new arrangements – particularly in situations where the employer of one parent offers enhanced maternity arrangements.
Recent case law (Shuter v. Ford Motor Company Ltd ) has confirmed that offering enhanced maternity leave, but not enhanced paternity leave could be justified (from a sex discrimination perspective), as enhanced maternity pay encourages a better representation of female members of the workforce.
However, what is not clear is whether companies will be obliged to offer the same enhanced package to employees on shared parental leave as they would to women on maternity leave. If they must do so, the financial incentives may encourage a departure from the traditional approach that a mother will stay at home for the full maternity leave period, which seems to fit with the objective of this legislation. A change in approach to the question of childcare, by business and individuals alike, could signify a positive development in equality, and could herald a new era of equality on boards and in managerial roles.
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.
