What does the new right entail?
The default position for parents remains that they are entitled to 52 weeks' maternity/adoption and two weeks' paternity leave. If the mother or primary adopter opts to curtail their maternity/adoption leave period, the remaining leave can be divided between the parents and a mother must take the two weeks’ immediately following the birth of her child as maternity leave. Thereafter, they can request whichever pattern of leave they wish for the remaining 50 weeks, although this is subject to the employers of both parents agreeing to that pattern.
How is Shared Parental Leave (SPL) different?
- SPL is more flexible and can be tailored to each family's requirements as long as these fit with the needs of their employers
- parents can take leave at the same time
- parents can take leave in a number of blocks
- partners are able to take a far longer period of leave up to a maximum of 50 weeks (compared to up to 26 weeks as Additional Paternity Leave provisions).
To qualify for SPL, employees must provide the following notices to their employers:
- Curtailment Notice
- Notice of entitlement and intention to take SPL; and
- Period of leave notice.
Are employers bound to provide the requested leave?
As long as eligible employees provide the notices above within the relevant timescales, an employer must agree to any request by an employee to take continuous leave in one block. Where the employee requests to take leave in a number of discontinuous blocks, the employer is able to refuse this request without giving reasons. The employee is then able to take the total amount of leave requested as one continuous block.
The ability to take discontinuous leave poses a specific risk to the education sector. Astute employees may opt to take parental leave during term time and return to work shortly before school holidays to maximise their pay while on leave. This will create specific issues for the sector and means special consideration should be given to any request for discontinuous leave.
Eligible employees will be entitled to up to 37 weeks’ Shared Parental Pay (ShPP) which may be shared between parents. This is in addition to the compulsory two weeks' maternity pay and subject to any additional maternity or adoption pay already paid in respect of that child being offset.
Employers can choose to make enhanced pay available to those on SPL if they currently enhance maternity pay. There is an argument that failure to do so could constitute indirect sex discrimination. The point was raised, unsuccessfully, in the case of Shuter –v- Ford Motor Company (3203504/13) in relation to the Additional Paternity Pay provisions but it failed, largely because of the particular factors of the workforce in question. It remains to be seen what approach the Courts and Tribunals will take in relation to whether employers should offer the same enhancements to ShPP as they do for maternity pay.
In essence, the rights regarding an employee's return to work following SPL and the right not to be subject to any detriment due to taking SPL mirrors the current rights relating to maternity and paternity leave.
Employees are entitled to 20 "shared parental leave in touch" (SPLIT) days, during the SPL period. These are separate and additional to any keeping in touch (KIT) days that a woman has on maternity leave.
You should consider introducing a clear SPL policy outlining an employee's entitlement and documents that will need to be completed for this. In addition, employers should now be training their managers so that they are aware of the new regime and, in particular, any approach that you wish to take to manage requests for discontinuous leave. It is important to consider whether any enhancement will be offered to staff while on SPL and to be aware of the potential risks associated with operating an enhancement for maternity leave but not for SPL.