Shared parental leave – new rights for parents

Posted on: May 21st, 2015

The maternity and paternity regimes have changed again. Parents of babies who were due on or after 5 April 2015 are now entitled to take ‘Shared Parental Leave’. Amy Richardson explains these new family friendly rules.

The purpose of Shared Parental Leave (SPL) is to enable eligible parents to choose how to share the care of their child during the first year of birth or adoption. The new rules mean that parents can take time off at the same time to look after a new born or at different periods in order to share child care.

It is hoped that SPL will help to create a family-friendly culture in the workplace.

How will it work?

Mothers have the right to take 52 weeks’ maternity leave, of which the first two weeks are compulsory. If the mother would like to share some of that leave with the father then she can opt out of maternity leave, and opt in to SPL, enabling whatever time and pay is left under maternity leave to be shared amongst the two parents. SPL can be taken consecutively or concurrently between parents, provided they do not take more than the total SPL available to them, and that it is taken before the child’s first birthday.

For example, a mother takes 20 weeks maternity leave, leaving 32 weeks to take. These 32 weeks can be shared between the mother and her partner as they wish, perhaps with the partner taking 20 weeks followed by the mother taking the final 12 weeks, or by both parents taking 16 weeks concurrently.

SPL may be taken as one continuous period or in blocks. If it is taken as one continuous period, the employer must agree to it. If SPL is taken in blocks then it must be taken in multiples of complete weeks. The periods of SPL must be agreed between the employee and employer in advance.

How much are they paid?

If the mother is entitled to Statutory Maternity Pay, then this can be transferred into the SPL system. Statutory maternity pay is paid at 90% of average earnings for the first six weeks and then a flat rate for the remaining 33 weeks. If the mother opts out of maternity leave before her 39 weeks of pay have been exhausted then the remaining pay can be transferred to the father under SPL.

Who does it apply to?

To qualify for SPL, employees must share care of the child with either:

  • Their husband, wife, civil partner or joint adopter;
  • The child’s other parent or other adoptive parent; or
  • Their partner (if they live with the employee and the child in an enduring family relationship).

Other conditions include:

  • The mother or primary adopter must have been with their current employer for 39 weeks before the expected week of child birth and still be in employment.
  • The other parent must satisfy the ‘employment and earnings test’, broadly, have worked on an employed or self-employed basis in 26 of the last 66 weeks earning at least £30 per week on average for 13 of those weeks. In some cases only one parent in a couple is eligible to get SPL and Statutory Shared Parental Pay. This means that they can’t share the leave between them, but the eligible parent can still use SPL to book their leave separately.

How does an employer check an employee’s claim to SPL?

When a mother opts out of maternity leave and into SPL, she and her partner must sign a document confirming their eligibility, the amount of leave (and pay) remaining, and how it is to be split between them. Legally binding declarations are given to the employers of both parents to ensure that the correct amount of leave and pay is being taken.

If employers are suspicious about an employee’s entitlement then they can check eligibility with HMRC and can ask their employee to provide a copy of the child’s birth certificate/documents issued by the adoption agency.

It is uncertain how many couples will take up the new SPL option, given that the pay rate is low, and not many fathers took advantage of the previous additional paternity regime. However, employers must be aware that, unlike the flexible working arrangements request, they cannot refuse a request for a continuous period of SPL.

Employers who offer enhanced maternity schemes should consider whether to offer the same benefits under SPL and the potential consequences if they do not (for example, would it be unlawful discrimination?).

Whilst the greater flexibility is good for working families, it may cause uncertainty for employers as to which employees will be in the office following a birth or adoption. It is therefore best for employers to have an early conversation with expecting parents to discuss likely periods of absence before the formal notice process starts. Employers could, however, benefit from the new system because periods of leave can be taken in blocks and this allows parents to return to the office for an important project or deadline and then go back on leave.

Employers and HR teams should start to consider the administrative changes that need to be made in order to manage a SPL system to ensure communication and forward planning is as effective as possible.