The government introduced a new shared parental leave and pay system for children born, or matched/adopted, on 5th April 2015 or after – effective in England, Scotland, Northern Ireland and Wales.
[Figures updated for 2018]
The Shared Parental Leave (SPL) system allows both parents and adopters more flexibility in how they care for their child during the first year after birth/adoption. In January 2015, the government published an ‘online calculator’ so you can work out what maternity, paternity or shared parental pay you may be entitled to – which you can see here.
Eligible parents will be able to share up to 50 weeks’ leave (52 weeks less two weeks compulsory maternity leave) to care for their childless the period that the mother has spent on maternity/adoption leave; and share up to 37 weeks’ shared parental pay (39 weeks less two weeks compulsory maternity/adoption pay) – less the pay period the mother has taken.
This new statutory right is incredibly complicated for employers and employees – so we try to explain it here as clearly as we can here.
What happens next?
From 1st December 2014, employees will have protection from detriment and unfair dismissal for exercising their rights to shared parental leave, as it’s a legal entitlement.
Employers will need to amend their existing maternity, paternity and adoption policies and will need to consider how, in situations they pay enhanced maternity pay and benefits, they propose to structure any enhanced shared parental leave pay and benefits. The government in November 2012, in their ‘Modern Workplace’ Consultation, said that: “maternity leave is a protected period and companies are able to offer maternity benefits to women only. There is no legal requirement for Companies to create occupational parental leave schemes”.
However, not giving enhanced shared parental leave pay and benefits to partners may amount to sex discrimination, as will dealing differently with requests for leave from the partner of the mother-to-be. Employers should document why SPL isn’t going to be enhanced if their maternity pay is; cost alone may not be a sufficient defence in front of a Tribunal.You need to consider whether you can objectively justify your position if you have a claim made against you.
In September 2014, an Employment Tribunal ruled than an Employer was not obliged to provide occupational pay during enhanced Additional Paternity Leave in circumstances where they provide an enhancement for women on maternity leave, but only because they could justify the difference – the details of this case are at the bottom of this article. In October 2016, an employment tribunal found that an employer’s failure to pay enhanced shared parental pay, where it pays enhanced maternity pay, amounts to indirect sex discrimination.
More details for Employers and what they need to consider are at the end of this article.
So, what does Shared Parental Leave actually mean?
- There will be no changes to statutory maternity leave or adoption leave, ordinary paternity leave (two weeks for fathers/partners) or ordinary unpaid parental leave (18 weeks), they continue as they are now.
- Additional paternity leave will be abolished (which now allows a mother who returns to work early to transfer the remaining period of her maternity leave to her partner)
- Women can continue to still have a right to 52 weeks statutory maternity leave if they choose (and 39 weeks statutory maternity pay).
- However, from April 2015 both parents can choose to share parental leave if the mother stops her maternity leave by giving a ‘curtailment notice’ after the first two weeks compulsory maternity leave (or four weeks if the mother does manual work in a factory) or the first two weeks of compulsory adoption leave.
- So maternity pay and leave (and adoption pay and leave for adopters and intended parents through surrogacy) can be converted into shared parental leave and pay if the mother/adopter wishes.
- Parents can divide up the 50 weeks of Shared Parental Leave (ShPL) between either parent in whatever way they choose,
- and can divide up the 37 weeks Statutory Maternity or Adoption Pay as Shared Parental Pay (ShPP)
- ShPP will be paid at the same rate as statutory maternity pay, which currently stands at £145.18.
Parents will need to decide whether SPL is beneficial for them or not – which will partly depend on whether the mother receives enhanced, contractual maternity or adoption or ShPP pay, which would not be available to the other partner.
Who will be eligible?
- A mother with a partner who is entitled to maternity/adoption leave or to statutory maternity/adoption pay or maternity allowance who ‘curtails’ (see below) her maternity/adoption leave and whose baby is born/adopted on or after 5th April 2015.
- A partner/parent/father who is an employee and shares the primary responsibility for the child with the mother, and who properly notifies their employer of their entitlement.
- Where both have main responsibility for the care of the child and have complied with the required notice periods to take Shared Parental Leave, and where the reason for taking leave is to care for the child.
- One person in the partnership must be an employee who has been continuously employed for a period of not less than 26 weeks ending at the end of the 15th week before the EWC (expected week of childbirth) or adoption match – this is called the ‘continuity of employment’ test (and is used for eligibility for both ShPL and ShPP) and
- they must remain in continuous employment with their employer in the 1st week of any period of shared parental leave taken.
- One person in the partnership must satisfy the ‘employment and earnings’ test for ShPL, which means they’ve been employed or self-employed for 26 out of the 66 weeks immediately preceding the EWC (or adoption match), and have earned above the maternity allowance threshold of £30 per week for 13 of the 66 weeks. The ‘employment and earnings’ test for ShPP is that an employee must have average weekly earnings, for the eight weeks prior to and including the 15th week before EWC or matching date, of not less than the lower earnings limits (currently £112 per week, increasing go £113 per week from April 2017), and that the employee must still be working for the same employer at the start of the first period of ShPP
- If the mother isn’t entitled to statutory maternity leave (because she isn’t an employee) but has received statutory maternity pay or maternity allowance, the mother cannot qualify for shared parental leave but the ‘father’ still can
- If both parents meet the ‘continuity of employment’ test, both can make use of SPL. If only one parent meets the eligibility criteria, e.g. a self-employed parent wouldn’t pass the ‘continuity’ test but could pass the employment and earnings test, allowing the other parent in the family to qualify if he/she is an employee
- The mother can share SPL with only one other person.
- SPL is only available for one pregnancy/adoption, there is no extra ShPL or ShPP for multiple births/adoptions.
How can shared parental leave be taken?
- The leave doesn’t have to be taken continuously – it can be in several discontinuous periods/blocks (see below)
- It must be taken in blocks of at least a week and can start on any day of the week (you cannot, for example, use SPL to reduce your working week – e.g. 3 days of SPL a week and 2 days of work).
- All leave must be taken within 52 weeks of the child’s birth/adoption.
- The couple can take their leave together, or
- The mother can continue on maternity leave and the partner can take a period of SPL (see below – this would reduce the overall period of maternity leave available), or
- The mother can return to work and her partner takes the balance of her leave, or
- The couple can take the leave in turns.
You will need to give notice to take Shared Parental Leave – there are three different types of notice:
- First – The mother needs to give her employer an initial notification of her entitlement and intention to take SPL by ‘curtailing’ or reducing her maternity/adoption leave and/or pay entitlement and give the date she proposes to end her leave.
- This notice is generally binding on the employee so cannot be withdrawn (except where it transpires that neither parent qualifies for ShPL or ShPP; or when notice was given before the birth, it may be withdrawn without a reason up to six weeks’ after the birth; or where the mother’s partner dies).
- Second – Then Employees need to give eight weeks ‘notice of entitlement’ of their intention to take a period of shared parental leave (there are two weeks built in here as a discussion period about the pattern of SPL proposed – see below). This ‘notice’ is non-binding for the employee and employer, but must include details of: the number of weeks of maternity/adoption leave/pay the mother took or will have taken; the maximum amount of leave available as ShPL; how ShPL is to be divided; an indication of when the employee plans to take their portion of leave and; a declaration from the other parent stating that he or she meets the employment and earnings test and that he/she shares the main responsibility for the child with the employee, and consents to the employee taking X number of weeks ShPL as specified. Both parents must sign this notice
- The employee doesn’t have to take their leave on the dates stated in the notice of entitlement, but this gives the Employer an indication of what is being considered. Where there is a joint entitlement to ShPL, both parents will have notified their respective employers how much leave they intend to take
- Third – Employees must provide their employer with a declaration, called a ‘notice to book leave’.
- Each eligible parent can give their employer up to three separate notices booking or varying leave (unless the Employer allows more). Each notice can be for a block of leave or for a pattern of multiple ‘discontinuous’ blocks of leave – see below. This notice must be given at least eight weeks before any period of leave would begin and must be in writing setting out what leave the employee is intending to take
- When all three notices are ‘used up’ the Employer is under no obligation to agree to any further variations/cancellations
- To vary the allocation of leave between parents at any stage, both parents must notify each employer in writing of the details of their original leave; advising they are changing it and how they now intend to take it. Both parents must sign the notice to confirm they are in agreement with the variation. A ‘notice’ to vary leave must also be made if SPL that was booked is no longer required. A ‘notice to vary’ will usually count as one of the three notices allowed (so varying the 1st notice will mean there is only one notice left)
- The variation must be made at least eight weeks before the varied dates; except where a child is born early and the employee has booked to take SPL within the first eight weeks of the due date – the employee can then take the same period of time off after the actual birth date without having to provide eight weeks notice, by submitting a notice to vary their dates as soon as is reasonably practicable (and this would not count as one of the three notifications)
- The same steps needs to be followed to claim ShPP (but can be included in the notice to curtail and notice of entitlement for ShPL as above).
- It is hoped the government will publish a standard notice form for employees soon
- A mother/adopter doesn’t have to have actually ended their maternity/adoption entitlement for SPL to start for their partner – they just need to have given notice to curtail their maternity/adoption entitlements.
How Employers should respond to the notice?
- An Employer should confirm their agreement (to a continuous leave notification or acceptance of discontinuous leave notification) in writing within 14 calendar days of receipt, confirming the relevant leave dates being taken.
- If an Employer/Employee agree a different discontinuous leave arrangement (or agree to change the dates of a continuous leave notification – although an employee is under no legal requirement to do this), the Employer should confirm this in writing with 14 days. Where an Employer proposes a variation to leave this doesn’t count as a further notification
- If an Employer cannot agree to a notification for discontinuous leave, they should meet with the employee to discuss the situation. If the notification remains unacceptable to the Employer they should write to them within 14 calendar days, providing proposed alternative dates for the employee to consider, and a confirmation of their refusal, and information on what options are now available to the employee (see below).
- An employee should not be pressured into changing his/her request.
- After receiving the notice the Employer can, within 14 days, ask for the name and address of the other parents’ employer (although the partner may be self-employed), and ask for a copy of the child’s birth certificate if this is available.
Continuous or Discontinuous Shared Parental Leave?
ShPL can be taken in one block or split-up in separate blocks (called Discontinuous leave), which means the employee would return to work between each ‘block’. An employee can give a maximum of three ‘period of leave’ notices (or variations of the notice) per child.
- If an employee requests a period of continuous leave, the Employer must agree to it (even if the Employer does not respond to the request).
- Where an employee requests discontinuous periods of shared parental leave, there is two weeks (14 calendar days) of discussion period built in for the employee/employer to discuss the request
- The employer can agree to this discontinuous leave, or propose alternative dates or refuse the request altogether – in which case the employee would be entitled to one continuous period of leave
- If, after the two week discussion period the Employer will not agree the employee’s requested pattern of discontinuous leave and the employer/employee have not agreed an alternative pattern that suits them both, or the employer has not responded to a leave notification (not recommended, but it’s not a statutory obligation to respond!) then the employee has a choice:
- he/she can either withdraw the notice on or by the 15th day after the notification was originally made and this will not count as one of their three notifications; and then submit a new request
- or take the total amount of leave requested in a single continuous block. The employee can choose when this leave period will begin, within 19 days of the date the notification was given, otherwise the leave will start on the first day of the first period of leave set out in the original notice requesting the leave.
- However, an employee will still be able to take leave in up to three discontinuous blocks even if their employer is not in agreement, simply by serving three separate notices in respect of each block of leave
- Once notice to take a period of leave has been given, employees can change the requested leave a maximum of two times, unless the employee/employer agrees otherwise.
You can see how complex these notice requirements are and there is no obligation on the partner’s employer to provide evidence of his or her eligibility, so this will have to be taken on trust.
It’s worth remembering that one partner may be reliant on the other partners employer accepting their request – if this is refused one or both parents may need to withdraw notifications or amend them.
It also appears that if an employee works in a school, she/he could take periods of shared parental leave during term-time and then “return to work” during school holidays!
Exceptional circumstances affecting SPL:
- If a child dies before the parents have submitted a notice of entitlement to take SPL, they cannot take SPL (the mother will remain entitled to maternity leave)
- If the parents have opted into SPL before the child dies and they have booked leave, they’ll be entitled to take that booked leave. No further notices to book leave can be submitted and only one variation notice can be given to reduce or rearrange a period of leave. An employee who is away on SPL may cancel their SPL and return to work by giving their employer eight week’s notice of their return to work
- Where an employee is booked SPL but they are no longer responsible for caring for the child (unless it is because they child has died), their entitlement to both SPL and ShPP will end immediately and they must tell their employer
- If either parent dies during the child’s first year and the other parent is taking, or is entitled to SPL, they will continue to be eligible and are also eligible for the other parent’s SPL.
Keeping in Touch days – to be called SPLIT, ‘Shared Parental Leave in Touch Days’
Similar to entitlements during maternity leave, an eligible mother and father will have an entitlement to 20 ‘keeping in touch’ days each, where they can work for their current employer without bringing the shared parental leave to an end. These days can be on a part-time basis and can be used for training, attending meetings or working before return to work to get back up to speed. These days are in addition to the mother’s entitlement to 10 ‘keeping in touch’ days during her maternity leave.
The employee and employer must agree whether the employee will work or not and how many days they’ll work, when, and how much they’ll be paid for them (and whether their pay top ups ShPP to full pay or is paid in addition. It’s usual to pay an employee the rate they would normally receive and of course it must at least be the National Minimum wage).
Neither is under an obligation to offer or take these days.
Employers and Employees should also agree the level and type of other contact throughout any period of SPL – so the Employer can keep the employee up to date with important business news, job opportunities etc.
Terms and conditions during ShPL other than Pay
During ShPL an employee will be entitled to all their existing terms and conditions other than those relating to pay, including accruing annual leave. Employers’ contributions to a pension scheme need to continue through the period of paid leave.
If an employees employment comes to an end while they are still entitled to ShPP, any remaining entitlement will usually be payable by the Employer – unless the employee starts working elsewhere.
Redundancy situations –
Redundancy situations will apply during ShPL when “it’s not practicable by reason of redundancy for the Employer to continue to employ the employee under the existing contract of employment”. The employee will be entitled to be offered a suitable alternative vacancy where there is one available on terms and conditions not ‘less favourable’ than those of the old job.
Returning to work –
If the mother or father takes six months (26 weeks) or less leave (including other leave combined with SPL such as statutory maternity leave, statutory paternity leave, but not including up to four weeks unpaid parental leave) they’ll be entitled to return to the same job they were employed in prior to leaving. If they take more than six months they have the right to return to the same job, unless this is not reasonably practicable, in which case they must be offered a suitable job on terms and conditions that are no less favourable.
And what should Employers do?
This new system is immensely complicated! But Employers need to consider having a Shared Parental leave policy and how they will handle requests under it (but which must meet the statutory minimum requirements).
Employers should also consider the impact SPL may have on their organisation (especially requests for discontinuous leave) and whether they’ll offer enhanced ShPP (see beginning and end of article).
Employers are advised to have informal discussions about SPL as soon as they are aware that an employee is taking maternity/adoption/paternity leave so both parties understand their rights and preferences and can plan in advance.
Acas advise it can be good practice to allow the employee to be accompanied to any meeting by a colleague, TU rep or personal friend or family member – this, however, isn’t a legal requirement.
Employers must remember that a period of continuous ShPL, on the dates when the employee wants, can’t be refused if the employee has provided proper notification and evidence. So, Employers will need to decide how the period will be covered.
Employers are also advised to have an informal meeting with the employee once they’ve received the ‘notice to book’ SPL to ensure they understand the situation. They also need to confirm the outcomes of the meeting in writing, recording decisions and rationales in case a claim is made. They’ll need to consider how they’ll keep track of requests and periods of leave taken.
Employers may decide to refuse all requests for discontinuous leave, to reduce disruption to the business (through busy periods, finding cover for the role, staff or customer issues) – but may find that employees challenge this via a grievance and/or litigation at an Employment Tribunal as discriminatory if they can show the policy placed a certain group at a disadvantage compared to other employees.
Employers also need to remember that it’s the employee’s responsibility to check they’re eligible for SPL and ShPP and an employer should grant leave/pay based on that information. If it’s subsequently found that ShPP was incorrectly paid the Employer can recover wrongly paid ShPP as an overpayment of wages (as a statutory amount).
Employers need to check whether their own employee meets the continuity of employment and earnings tests but a notice of entitlement to take SPL and ShPP is sufficient evidence of the employees right to claim it.
If an Employer intends to contact the other partners employer, they need to consider their data protection obligations and their duty of confidentiality.
In October 2015, the government announced it would introduce Grandparental Pay and Leave in 2018 (which would be based on SPL). It was due to launch a consultation in May 2016 but this was delayed because of the EU Referendum, and again by the June 2017 General Election. In May 2018, the government announced it has put its plans to introduce Grandparental Leave on hold, while it reviews Shared Parental Leave generally (this review is expected to be published in early 2019).
See the ACAS process chart here.
Our advice for Employers would be that if you don’t understand this ridiculously complicated legislation, please let us help you guide you through it!
Details of the September 2014 Employment Tribunal ruling that an Employer was not obliged to provide occupational pay during Additional Paternity Leave (APL) in circumstances where they provide an enhancement for women on maternity leave
The Employment Tribunal decision in Shuter v Ford Motor Company isn’t binding and was quite fact specific; but it’s an indication of how a Tribunal may approach this when SPL is introduced for babies born on/after 5th April 2015, and when Employers are deciding whether to offer enhanced Shared Parental Leave payments to all employees or not.
Basic facts of the case:
Mr Shuter took APL and was paid the statutory rate. However, Ford operated an enhanced maternity pay scheme for mothers who got 100% of their basic pay for 52 weeks of maternity leave. This difference meant Mr Shuter lost approximately £18,000 compared to a woman receiving maternity pay. He lodged a claim for direct and indirect sex discrimination.
The direct sex discrimination claim was dismissed as the basis that Mr Shuter should’ve chosen a female comparator on APL rather than a female comparator on maternity leave (ie. he should have chosen a partner of a woman who had given birth).
The indirect sex discrimination also failed. Mr Shuter argued that a number of European cases had broadened the concept of maternity leave AFTER 20 weeks to something more akin to child care leave and balancing family and work, rather than about the biological needs of the family. He said the PCP (provision, criterion or practice) that led to indirect discrimination was “the practice/policy of paying women basic pay when on leave beyond 20 weeks after the birth of their child, when looking after their child”. The Tribunal found this was discriminatory. Ford successfully argued it was justified and necessary in order to achieve the legitimate aim of increasing the number of women employed by Ford which had a male-dominated workforce (Ford had details records of its efforts to increase its female workforce).
In addition, the Tribunal noted the government’s advice to Employers was that there was no requirement for APL pay to match any enhanced maternity pay.
In October 2016, an employed tribunal found that Network Rail had committed indirect sex discrimination when it failed to pay enhanced shared parental pay to a male employee.
This is the first reported decision and made by an employment tribunal, so is not binding on other tribunals. Network Rail pay enhanced maternity pay and David Snell and his wife both worked for the company. While Mrs Snell received full pay for 26 weeks on maternity leave, he was only entitled to shared parental pay at the statutory rate so raised a grievance, which was rejected.
He went on to make a tribunal claim and Network Rail did admit their policy was indirectly discriminatory; he was awarded just over £28,000 in compensation. It’s believed that Network Rail have said in press reports since that it has now reduced its maternity payments to the statutory rate level, to avoid discrimination, which appears a slightly odd way of dealing with the issue (read contractual problems, recruitment problems). What we don’t know is whether Network Rail tried to argue that its policy was a proportionate means of achieving a legitimate aim (as Ford did above).
June 2017, Ali v Capita Customer Management Ltd
In this case a tribunal has ruled that an employer failing to enhance pay for Shared Parental Leave to the same level as enhanced Maternity Pay is direct sex discrimination. Mr Ali took two weeks paternity leave following his daughter’s birth; his wife was then diagnosed with post-natal depression and was advised to return to work to counteract this. Ali wanted further paid leave and was told by his employer he was entitled to shared parental leave, but only at the statutory rate of pay. The Tribunal found that excluding fathers from entitlement to benefits set out in the maternity policy was sex discrimination.
In April 2018, the Employment Appeal Tribunal overturned this decision, and said that Employers who pay enhanced maternity pay but not enhanced shared parental pay don’t directly discriminate against men. Their decision was made because the main purpose of maternity leave and pay is to protect the health of the mother; the purpose of shared parental leave is to enable either parent to care for their child. The two types of leave can’t therefore be compared, at least for the first 14 weeks. The EAT said the correct ‘comparator’ for Mr Ali would be a woman on shared parental leave.
In the part of Capita that Mr Ali worked, women received full pay for the first 14 weeks of their maternity leave. But parents of either sex were given shared parental leave on the same terms and conditions. The EU’s Pregnancy Workers Directive requires member states to introduce laws to enable women to take maternity leave with ‘adequate’ pay for a minimum of 14 weeks, to protect the health of the mother (not to look after the child), and the maternity leave and pay can start before the mother gives birth.
In Hextall v Chief Constable of Leicester Police, in May 2018, however, the EAT found that paying more maternity pay than shared parental pay may be indirect sex discrimination.
If you are an Employer and need ongoing professional help with any staff/freelance issues then talk to Lesley at The HR Kiosk – a Human Resources Consultancy for small businesses – our fees are low to reflect the pressures on small businesses and you can hire us for as much time as you need.
Please note that the advice given on this website and by our Advisors is guidance only and cannot be taken as an authoritative or current interpretation of the law. It can also not be seen as specific advice for individual cases. Please also note that there are differences in legislation in Northern Ireland.