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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 and Wales.
(In Northern Ireland the Work and Families Act will come into effect on the 5th April 2015, having recived Royal Assent in January 2015, and will mirror the rights in England, Scotland and Wales).
This new Shared Parental Leave (SPL) system is to allow 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 2 weeks compulsory maternity leave) to care for their child – less the period that the mother has spent on maternity/adoption leave; and share up to 37 weeks’ shared parental pay (39 weeks less 2 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.
Regulations came into force on 1st December 2014 – Acas have publications about SPL which you can find links to at the end of this article. This means employers may get formal notifications from employees to take the leave from 8 February 2015 and maternity leave curtailment notices from 1st December 2014 (explained below).
And from 1st December 2014, employees will have protection from detriment and unfair dismissal for exercising their rights to shared parental leave, as it is a legal entitlement.
Employers will need to amend their existing maternity, paternityand adoption policies and will need to consider how, where 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 with requests for leave from partners differently to those from the mother-to-be. Employers should document why SPL is not 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.
This is because 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. Also, 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
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.
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 3 ‘period of leave’ notices (or variations of the notice) per child.
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 is 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!
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 will work, when, and how much they will be paid for them (and whether their pay top up’s ShPP to full pay or is paid in addition. It is 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.
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 then any remaining entitlement will usually be payable by the Employer; unless the employee starts working elsewhere.
Redundancy situations will apply during ShPL when “it is 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.
If the mother or father takes 6 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 4 weeks unpaid parental leave) they will be entitled to return to the same job they were employed in prior to leaving. If they take more than 6 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.
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).
And also to consider the impact SPL may have on their organisation (especially requests for discontinuous leave) and whether they will 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 is however not a legal requirement.
Employers must remember that a period of continuous ShPL, on the dates when the employee wants, cannot 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 have received the ‘notice to book’ SPL to ensure they understand the situation. And to confirm the outcomes of the meeting in writing; recording decisions and rationales in case of claims being made. Also consider how they will 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 is the employee’s responsibility to check they are eligible for SPL and ShPP and an employer should grant leave/pay based on that information. If it is subsequently found that ShPP was incorrectly paid the Employer can recover wrongly paid ShPP as an overpayment of wages (as a statutory amount).
Employers do 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 delivered because of the Referendum. This consultation will be further delayed by the June 2017 General Election.
Acas have published a “Shared Parental Leave: a good practice guide for employers and employees” which is here http://www.acas.org.uk/media/pdf/1/c/Shared-Parental-Leave-a-good-practice-guide-for-employers-and-employees.pdf
And a process chart here http://www.acas.org.uk/media/pdf/m/i/Shared-Parental-Leave-process-summary.pdf
Our advice for Employers would be that if you do not understand this ridiculously complicated legislation then please let us help you guide you through it!
The Employment Tribunal decision in Shuter v Ford Motor Company is not binding and was quite fact specific; but it is an indication of how a Tribunal may approach this, when SPL is introduced for babies born on or 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 have 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; but, 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 Governments advice to Employers was that there was no requirement for APL pay to match any enhanced maternity pay.
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 Network Rail. 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 and the appeal rejected.
He went onto make a tribunal claim and Network Rail did admit their policy was indirectly discriminatory; he was awarded just over £28,000 in compensation. It is 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).
In this case a tribunal as 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 2 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. NB: This judgement may only apply to a situation where a father has made it clear to his employer that he needs to carry out the “primary care-giver role” as his wife was returning to work on medical advice (fathers who wish to take shared parental leave concurrently with the mother MAY find it more difficult to show direct 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.
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