The rumours are true. The days of maternity leave are over. Well, sort of!
From 1 December 2014, a new regime of shared parental leave will come into force which will supplement the traditional system of maternity, paternity and adoption leave. In summary, this will allow for 50 weeks’ leave to be shared between the parents of the child however they wish, subject to certain guidelines.
What is Shared Parental Leave?
Although parents will remain entitled to take maternity, paternity and adoption leave, an eligible mother or adopter may now choose to reduce their period of leave early and “opt in” to the Shared Parental Leave (SPL) regime. From 1 December 2014, Ordinary Paternity Leave will continue but Additional Paternity Leave will be abolished.
A birth mother must take at least two weeks’ maternity leave following the birth of a child (four weeks for manual work in a factory environment) but can otherwise choose to end her maternity leave at any stage. An adopter can end their adoption leave once they have taken it for two weeks. Once the parents have opted in to the SPL regime, they can divide the remaining 50 weeks’ leave as best suits them.
Who is Eligible for Shared Parental Leave?
SPL will be available for eligible parents of babies due, or children placed for adoption, on or after 5 April 2015. Importantly, it is available where babies are due on or after 5 April – if the baby is born prematurely, then eligible parents will still benefit from the new rules.
Parents will need to be eligible to receive the benefit of SPL. Amongst other things, the employee must have worked for the employer for at least 26 weeks at the end of the 15th week before the expected due date/matching date and earning an average of at least £30 (amount subject to change).
How Does SPL Work?
The mother can opt into SPL at any time during their maternity leave period. So, for example, the mother might take 6 months as maternity leave, then opt into SPL to reduce their entitlement to leave by 2 months, giving their partner the chance to take those 2 months as SPL.
Importantly, SPL can be taken by the partner while the mother is still on maternity/adoption leave if the mother reduces their entitlement to maternity/adoption leave. In other words, both parents can be off work at the same time.
SPL must be taken in complete weeks, and can be in either one continuous block or multiple discontinuous blocks. So, an employee could take one block of 6 weeks’ leave or could ask for that 6 weeks to be split up, for example by 4 weeks’ SPL followed by 3 weeks back at work, followed by 2 weeks’ SPL. Discontinuous leave can only be taken with the employer’s agreement, and usually following consideration of the demands on both employer and employee. Once a request for discontinuous leave has been made, the employer and employee will have a period of 14 days as a discussion period. If the employer does not agree to the request for discontinuous leave, then the leave must be taken as a continuous block unless the notice is withdrawn and a new request submitted.
An employee is entitled to submit three separate notices to book leave, although an employer may permit more. A notice to book SPL must be submitted, in writing, at least 8 weeks before any period of leave would begin.
What Pay do Employees Receive During SPL?
Subject to certain criteria, a mother will be entitled to statutory maternity/adoption pay for up to 39 weeks. If the mother gives notice to reduce their entitlement before they have received the full SMP/SAP entitlement, the remaining weeks will become available as Shared Parental Pay (ShPP).
If both parents qualify for ShPP, they must decide who will receive it, or how it will be divided, and they must each inform their employer of their entitlement.
Implementing a SPL Policy
No blog on employment law would be complete without a reference to a policy. So here it is: employers would be well advised to have a policy in place setting out employees’ entitlements to SPL and any notice requirements etc that apply, as well as how employers will approach requests for discontinuous leave. The policy should include details on the eligibility criteria, the entitlement available for eligible employees and what they should do to invoke the eligibility.
Employers should ensure that line managers are aware of employees’ entitlements so that they do not inadvertently overlook a notice for SPL. In the case of a failure to respond to a leave notification, the employee will be automatically able to take continuous leave at the date of his/her choosing.
There are a number of practical matters that an employer will need to consider or be aware of when faced with a SPL request:
- Requests for continuous periods of leave cannot be refused. Only discontinuous leave can be refused. Employers should give careful consideration to whether, in fact, it suits their businesses better to split the leave or have the leave taken in one block. If dealt with well, SPL can result in increased productivity and loyalty. Handled badly, quite aside from the legal risks, employers can end up with unhappy and demotivated employees.
- Try to agree levels of permissible contact with the employee before he/she takes the time off. Regular contact can assist both employer and employee, and facilitate a smoother return to work after the leave has come to an end. However, if that contact is unwelcomed then the employer may risk irreparably harming the employment relationship.
- Annual leave will continue to accrue while the employee is on annual leave. If the SPL arrangements mean that an employee will be away over the end of the leave year period, encourage the employee to use up annual leave before they take SPL if possible. Otherwise, it is good practice to allow the employee to carry over the leave into the following leave year.
- It will be unlawful to subject any employee seeking to exercise their right to take SPL to a detriment or dismiss them for doing so. Also, employers should make sure they do not discriminate against employees, particularly inadvertently. Particular risk areas in the field of SPL are discrimination on the grounds of gender or sexual orientation. Remember that same sex couples, for example, will benefit from these parental entitlements in exactly the same way as heterosexual couples. Similarly, men seeking to take a longer period off work should be treated in exactly the same way as a woman would be.
- Employers may want to consider any enhancements that they offer to employees, particularly those on maternity leave. Views are currently divided as to whether offering enhanced maternity benefits but not enhanced SPL benefits could be considered discriminatory. Employers should be prepared to explain their decisions if challenged.
- Remember that all employees now have a right to request flexible working. It remains to be seen whether the opportunity for fathers, in particular, to take an increased role in the child’s first year of life will have an impact on the number of employees who request flexible work arrangements, but employers should ensure they have an up-to-date flexible working policy in place reflecting the current law.
For more information on Shared Parental Leave
If you need help or advice, please contact a member of the employment team in St Albans, Hertfordshire.