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Posted by Lesley Furber on May 24th, 2019 | Employment law
Shared Parental Leave and Pay can be extremely confusing for employers and employees alike. The system is for children born, or matched/adopted, on 5th April 2015 or after – and is effective in England, Scotland, Northern Ireland and Wales.
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.
The current system of Shared Parental Leave was introduced in 2015 (included in the Children and Families Bill). The government has an ‘online parental leave calculator’ so you can work out what maternity, paternity or shared parental pay you may be entitled to.
Eligible parents are able to share up to 50 weeks’ Parental Leave (52 weeks less two weeks compulsory maternity leave) to care for their child, less the period that the mother has spent on maternity or adoption leave.
Eligible parents/adopters can also share up to 37 weeks’ Shared Parental Pay (39 weeks less two weeks compulsory maternity or adoption pay) – less the pay period the mother has taken.
This statutory right can be incredibly complicated for employers and employees – so we try to explain it here as clearly as we can here.
We’ve broken our article down into sections to try to make it easier to understand:
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 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 pay, which would not be available to the other partner.
There are three different types of notice:
First type of notice– 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This notice is generally binding on the employee so cannot be withdrawn (except where it transpires that neither parent qualifies for SPL or ShPP; or when notice was given before the birth, it may be withdrawn without a reason up to six weeks’ after the birth; or where the mother’s partner dies).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 type of notice – 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 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 SPL, both parents will have notified their respective employers how much leave they intend to take
Third type of notice – 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 need to be followed to claim ShPP (but can be included in the notice to curtail and notice of entitlement for SPL 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.
SPL 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.
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 partner’s 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’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.
During SPL 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 will apply during SPL 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.
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.
The system is immensely complicated! But employers need to consider having a Shared Parental leave policy and how they will handle requests under it (this 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 the end of this 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, trade union rep, personal friend or family member – this, however, isn’t a legal requirement.
Employers must remember that a period of continuous SPL, 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 partner’s employer, they need to consider their data protection obligations and their duty of confidentiality.
Our advice for employers would be that if you don’t understand this very complicated legislation, then get an expert to guide you through it!
Since 1st December 2014, employees have had protection from detriment and unfair dismissal for exercising their rights to shared parental leave, as it’s a legal entitlement.
Generally, employers must look at their existing maternity, paternity and adoption policies and consider, if they offer enhanced maternity pay and benefits, whether they will also offer 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” (i.e. enhanced parental leave schemes).
However, initially there were concerns that companies who gave employees enhanced maternity/adoption pay, but did not give enhanced shared parental leave pay and benefits to partners, would amount to sex discrimination, as will dealing differently with requests for leave from the partner of the mother-to-be, than they would to woman taking maternity/adoption leave.
If employers do not offer enhanced SPL/Pay (but they offer enhanced Maternity Pay/Leave) they should document why SPL isn’t going to be enhanced, when their maternity pay is; cost alone may not be a sufficient defence in front of a Tribunal. If you’re an employer then 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, in Shuter v Ford Motor Company that 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. This decision was at Employment Tribunal level and so isn’t binding, and it was quite fact specific.
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.
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.
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 ruled that an employer failing to enhance pay for Shared Parental Leave to the same level as enhanced Maternity Pay, was 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 May 2019 the Court of Appeal agreed with the EAT and said that different rates of pay for mothers on maternity leave and fathers on shared parental leave is not unlawful sex discrimination (not direct or indirect discrimination, nor is it in breach of equal pay legislation).
They confirmed that the purpose of maternity leave is for the protection of the mother’s health during pregnancy and afterwards, and also for the protection of the relationship between the mother and child after childbirth; and they also disagreed with the argument that, at some point during the 52 week maternity leave period, the purpose of the maternity leave changes from being about health and safety and becomes about the purpose of caring for the child. This may go to the Supreme Court.
oever, in Hextall v Chief Constable of Leicester Police, in May 2018, the EAT found that paying more maternity pay than shared parental pay may be indirect sex discrimination. In May 2019, the Court of Appeal disagreed with the EAT and found this was not sex discrimination, of any kind (it was a joint decision by the Court of Appeal about Hextall v Chief Constable of Leicester Police AND Ali v Capital Management – so the details in the above paragraph apply here too). Mr Hextall tried to appeal to the Supreme Court but In February 2020 they refused to hear the case; the Court of Appeal’s decision stands as law.
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 had put its plans to introduce Grandparental Leave on hold, while it reviews Shared Parental Leave generally. At the beginning of 2019, there have been no further developments!
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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