As part of the coalition government’s move towards more flexible working for parents, the Children and Families Act 2014 (CFA 2014) introduces a new, optional entitlement for employees to take shared parental leave (SPL) in the first year of their child’s life (or the first year after their child’s placement in adoption cases). The intention of these changes is to enable parents to share the responsibilities of caring for their child according to their preferences and circumstances, and encourage greater participation in family life by fathers.

For the purpose of this article, any references to the birth of a child/maternity shall include the equivalent references for adoption.

The scheme gives eligible mothers the option to stop their maternity leave early and to opt in to SPL instead. The 52 weeks of maternity leave (including two weeks of compulsory maternity leave) and 39 weeks of statutory maternity pay or maternity allowance will continue to be available, but SPL affords eligible parents the option to share up to 50 weeks of leave and 37 weeks of shared parental pay (ShPP). The amount of SPL available is the balance of the total maternity leave entitlement (52 weeks) minus what the mother has already taken or will take, provided that the mother must take compulsory maternity leave for the first two weeks after the birth. Two weeks’ paid paternity leave will also continue to be available to fathers and partners, but additional paternity leave (APL) will be abolished and effectively replaced by SPL.

The main difference between SPL and maternity leave is that SPL need not be taken in a continuous block, so eligible employees can take periods of SPL and return to work in between, although an employer can refuse this request. Also, parents are free to split SPL and take blocks at the same time, rather than at different times as was the case with the old APL system.

The scheme applies to eligible parents with babies whose due date is on or after 5 April 2015. It is estimated that some 280,000 working couples will be eligible for SPL. As the legislation itself comes into force on 1 December 2014, employers could receive notices of eligibility and the intention to take SPL from qualifying employees very soon.

Qualification and eligibility

To qualify for SPL, the mother must:

  1. have a partner
  2. be an employee entitled to maternity leave
  3. share the primary responsibility for the child with the other parent

The parents must also satisfy the following tests:

  1. Continuity of employment test: the parent seeking SPL must have been continuously employed by the same employer for at least 26 weeks by the end of the 15th week before the due date and remain employed by that employer at the start of the week in which SPL is to be taken
  2. Employment and earnings test: the employee’s partner must have worked for at least 26 weeks of the 66 weeks before the due date and, in any of those 13 weeks, earned at least £30 gross pay on average per week and paid either class 1 or class 2 national insurance contributions

It is the responsibility of the employee to check that s/he are eligible for SPL and s/he must provide employers with a declaration confirming his/her eligibility and a further declaration from his/her partner confirming that s/he meet the “employment and earnings test”.

Overview of procedure

STEP 1: Curtailment of maternity leave 

The first stage for an eligible mother who wants to take SPL, or enable her eligible partner to do so, is to end her maternity early. This is done in one of 2 ways:

  1. Returning to work: the mother must give her employer at least 8 weeks’ notice of her early return; or
  2. Curtailing maternity leave: the mother must give her employer a written “curtailment notice” ending the maternity leave on a specified date before returning to work (this date must be after the 2 week compulsory maternity leave period and give the employer at least 8 weeks’ notice)

STEP 2: “Notice of entitlement and intention to take SPL”, and “Period of leave notice”

A. Notice of entitlement and intention to take SPL

At the same time as serving a curtailment notice, the mother must serve a “notice of entitlement and intention to take SPL”, or a declaration stating that her partner has done so, on the employer. This must be given at least 8 weeks before the proposed start of SPL and must include the start and end dates for the period(s) of leave. This notice should be accompanied by a declaration by the other parent consenting to the proposal and must detail the amount of SPL requested and how this is to be divided between the parents.

In the two weeks following an employer’s receipt of a “notice of entitlement and intention to take SPL”, it may request a copy of the child's birth certificate (or, if the notice is received before the birth, a signed declaration that the birth certificate has not yet been issued) and the name and address of the other parent's employer which must be provided within a further two weeks.

B. Period of leave notice

The mother must also give her employer a “period of leave notice” (effectively “booking” the leave) either with the “notice of entitlement and intention to take SPL” or after this has been served. Each eligible parent may give their employer up to 3 “period of leave notices”. This notice must also be given to the employer at least 8 weeks before the proposed start of the period of SPL and will detail the start and end dates of each period of SPL requested.

In the “period of leave notice”, the employee will request either one continuous block of SPL or a discontinuous block of up to three periods of SPL. The employer’s next step will depend on whether the employee has requested a continuous or discontinuous block of SPL.

A continuous block is a single period of unbroken leave. Eligible employees have a statutory right to take their SPL in this way so an employer cannot refuse a request for a continuous block.

One of the key aspects of the SPL scheme is the employee’s ability to request discontinuous blocks of SPL. These are blocks of SPL interspersed with periods during which the employee returns to work. Unlike continuous leave, employers are entitled to refuse requests for discontinuous blocks of SPL.

It is advisable for employers to consider having early informal discussions with employees, whether on receipt of a “period of leave notice” or the “notification of entitlement and intention to take SPL” or at some other time. As well as enabling employers to ensure that the employee is aware of their statutory rights and any relevant contractual schemes, both parties will be able to discuss his/her preferences regarding the nature and dates of the leave and whether any alterations could be made to accommodate their respective preferences.

If discontinuous leave is requested, the employer will have 14 calendar days to discuss the proposal with the employee before it must accept, propose alternative dates or refuse the request.

STEP 3: Outcome of notification

Once an employer has received and considered a “period of leave notice”, it may choose one of the following possible outcomes:

A. Unconditional acceptance

Employers cannot refuse requests for a continuous block of SPL. If the employer accepts a request for a discontinuous block of SPL, they should send written confirmation of this to the employee within 14 calendar days of the date the notice was received.

B. Confirmation of an agreed modification

Employees are under no obligation to accept modifications proposed by the employer to a request for continuous SPL, however, changes may be agreed between the parties. If an amendment to a request for discontinuous SPL is agreed, both the employer and the employee should agree this in writing within 14 calendar days of the date the notice was received.

C. Refusal

Employers can only refuse a request for discontinuous SPL. If a request for a discontinuous block of SPL is not acceptable, an employer must send the employee alternative date proposals where possible, confirmation of its refusal and information on the options still available within 14 calendar days of the date the notification was given.

If a request for a discontinuous block of SPL is refused and alternative dates cannot be agreed, the employee can take the total amount of leave as one continuous block or withdraw the original notice and submit a new request.

Parents’ rights during SPL

As with maternity leave, during SPL employees are entitled to benefit from the terms and conditions of employment that would have applied but for his/her absence, with the exception of those regarding remuneration. Amongst other things, these benefits will include:

  1. the right to return to the same job in which s/he were employed before his/her SPL period or a suitable alternative;
  2. the right to be offered a suitable alternative role in preference in the event of a redundancy;
  3. protection from detriment and dismissal for taking SPL; and
  4. the right to reasonable contact with his/her employer during his/her SPL and the ability to undertake up to 20 Shared Parental Leave in Touch (SPLIT) days without bringing the SPL to an end

Shared parental pay (ShPP)

If a mother is entitled to statutory maternity pay (SMP) and she gives notice to curtail her entitlement before she will have received the full 39 weeks, ShPP could be available for any remaining weeks. The maximum ShPP available is a total of 37 weeks (as the mother must take SMP during the first 2 weeks after the birth). To qualify for ShPP, a parent must:

  1. be entitled to receive SMP/statutory paternity pay (SPP)
  2. satisfy the “continuity of employment test” (as detailed above)
  3. have earned an average salary of at least the lower earnings limit (currently £111) for the 8 weeks prior to the 15th week before the due date
  4. have a partner who satisfies the “employment and earnings test” (as detailed above)

If the mother intends to take ShPP, she must then give her employer notice to reduce or end her SMP. This notice must include:

  1. how much ShPP both parents are entitled to take
  2. how much ShPP each parent intends to take
  3. when they expect to take ShPP
  4. a declaration from the employee’s partner confirming his/her agreement to the employee claiming his/her amount of ShPP

ShPP is paid at the rate of £138.18 a week or 90% of the employee’s average weekly earnings, whichever is the lower. Employers will pay ShPP in the same way as SMP/SPP.

Conclusion

As employers are now liable to receive notification from qualifying employees, they should be thinking about formulating and implementing policies to introduce the changes. Employers must also be aware of the right of employees not to be subjected to any detriment because they have asked to take SPL. Due to the complexity of the rules and notification requirements, a good starting point is preparing a shared parental leave policy and providing training for HR and line managers. Not only will this make the transition smoother for both parties, but it will enable them to mutually benefit from the potential advantages of this scheme.