Current employment law includes the option of Additional Paternity Leave (“APL”) which enables partners/adopters to share statutory maternity leave and pay by taking up to 26 weeks paternity leave if the mother wishes to return to work.  This system will be abolished and replaced by the new Shared Parental Leave legislation (“SPL”) which is a much more flexible system allowing parents (including adopters) to organise their leave arrangements and statutory pay as best suits them.

Because the system is so flexible, the legislation is complex and the new system will seem daunting for most employers.  This new legislation will apply to all babies whose expected week of childbirth is, and children placed for adoption, on or after 5 April 2015.

SPL in a nutshell:

The mandatory two weeks’ maternity leave after childbirth will still apply.

  • The ordinary paternity leave of two weeks within 56 days of a child's birth or placement for adoption will still be available.
  • SPL applies to employees only and in order to access the scheme, both partners/parents must be ‘economically active’.
  • Up to 50 weeks of SPL and statutory SPL pay can be taken and shared by eligible ‘parents’/adopters.
  • Leave under the SPL system can be taken consecutively, in multiple blocks or concurrently.
  • The mother must give not less than 8 weeks’ notice of her desire to move from maternity leave to the SPL system and submit a ‘notice of curtailment’ of her maternity leave.
  • An employee opting-in to the SPL system must submit an ‘opt-in’ notice or ‘notice of entitlement’ which includes certain details, including the total amount of SPL available (having deducted any period of maternity leave by the mother, after the two mandatory weeks after childbirth) and a non-binding indication of when they expect to take SPL.  
  • At least 8 weeks before the start of any period of SPL, the employee must submit a ‘period of leave notice’.
  • Employers are not able to refuse any periods of continuous leave. If discontinuous periods of leave are requested (that is, multiple blocks of leave), then the employer must consider the request but can reject it. If the request is refused, the employee may choose to take the total amount of leave requested as a continuous period or withdraw his or her original notice. An employee may serve up to three notices of leave.
  • Employees are protected against dismissal and from being subjected to any other detriment for taking or seeking SPL.
  • Employees on SPL will have special rights if a redundancy situation occurs during a period of leave, similar to the current rights for employees on maternity leave.

Practical steps for employers:

  • Employers should plan in advance and produce a policy/procedure setting out what employees will need to do in order to access the scheme so that employees and management know what to do when a notice is submitted. Employers should consider how they will communicate any SPL policy and whether any training should be given to management/HR.
  • Employers should produce a suite of template documents including in particular the various different notices.  
  • Employers will need to think carefully about what to do about SPL pay. If they enhance maternity pay, should they also enhance SPL pay and if they choose not to do so, could this give rise to potential discrimination claims?