The new shared parental leave system applies to parents who meet the eligibility criteria and whose expected week of childbirth begins on or after 5 April 2015, or who are placed for adoption from that date.

If you have not yet finalised your shared parental leave policy, here is a list of key questions you should consider:

  • If you currently provide enhanced maternity pay, will the level of pay remain the same?
  • Will you provide enhanced shared parental pay – if so, will this be at the same level as enhanced maternity pay? What about return to work bonuses?
  • What systems are needed to minimise abuse and to ensure correct pay and leave is given? For example, verifying evidence of eligibility and monitoring leave taken.
  • How will you ensure fair treatment of requests for discontinuous leave to reduce the risk of discrimination claims?
  • What disciplinary action, if any, will be taken for abusing the system, for example, if a parent on SPL is not caring for their child and, for example, is instead on holiday with friends?

The detail: Key points to know …

  • For either parent to be eligible for SPL, the mother must give notice giving her intention to end her SML at least 8 weeks before the first period of SPL
  • SML cannot end until at least 2 weeks after the birth
  • There is no continuous employment requirement for SML or (from 5 April 2015) AL, but employees taking SPL must have 26 weeks’ continuous employment at the 15th week before the EWC
  • There are different eligibility criteria for SPL and SSPP
  • Each parent must qualify for SPL and SSPP in their own right
  • In some cases, only the father/mother's partner will qualify for SPL (e.g. where the mother is a worker or is self-employed)
  • SSPP is paid at the same rate as the lower rate of SMP (GBP 139.58 per week from 5 April 2015)
  • Reasons for agreeing/ refusing SPL requests should be documented carefully
  • Each parent on SPL can take 20 "SPLIT" days, in addition to the 10 KIT days for SML/AL
  • Rights to statutory unpaid parental leave are unaffected by SPL (18 weeks’ leave until the child is 18 (from 5 April 2015))
  • Ordinary paternity leave will remain but APL will go

Shared Parental Leave – the key provisions

  • Eligible parents can take up to 52 weeks’ SPL:
    • First 2 weeks are compulsory maternity leave/AL
    • Remaining 50 weeks are available for sharing
    • Leave can be taken consecutively or concurrently – but the total time taken by both parents cannot exceed 52 weeks
    • Leave can be taken in a minimum of one week blocks (part of a week is treated as a whole week)
    • Cut-off point for taking SPL is 52 weeks from the birth/adoption
    • Default position for mothers: 52 weeks’ maternity leave and 39 weeks’ pay
    • Fathers will still be entitled to 2 weeks’ ordinary paternity leave (unless they have already taken SPL)
  • Employees must provide a non-binding indication of their expected pattern of leave 8 weeks before the start date of the first period of SPL
  • binding notice of leave (which can be given at the same time as the non-binding notice) must also be given at least 8 weeks before the start date of the period of SPL
  • That notice is binding unless:
    • Parent discovers they do not qualify for SPL
    • Mother gave notice before the birth of the child – she can change her mind up to 6 weeks after the birth
  • Parents must agree the timing and periods of leave with their employer
  • If they cannot agree, it will default to a single block of leave, to commence on a date specified by the employee in the binding notice, or the employee can withdraw the request
  • Each parent can make a maximum of 3 notifications for leave, or changes to periods of leave – but the employer and employee can mutually agree additional changes

Qualifying conditions – Shared Parental Leave

  • To qualify for SPL, the mother and father must:
    • Have caring responsibility for the child throughout SPL but starting at the child’s birth or placement for adoption
    • Have given notice to their employer of their entitlement to SPL
    • Have complied with their respective employer’s request for evidence
    • Have given the required notice

There is a 2 stage eligibility test for SPL:

Stage 1: economic activity test – for your employee's partner

An individual’s partner must have:

  • Worked for any 26 out of the 66 weeks before the EWC, and
  • Earned at least GBP 30 gross salary per week for any 13 of those weeks
  • Eligibility for SPL for one parent is dependent on the other parent passing the economic activity test

Stage 2: individual test – for your employee

The parent must be employed, and:

  • Have 26 weeks’ continuous service with the employer at the 15th week before the EWC
  • Still be working for the same employer when they take SPL

Note: Each parent must qualify for SPL in their own right

  • For the mother to qualify for SPL, she must be entitled to SML, and have issued a notice to curtail that leave
  • For the father to qualify for SPL, the mother must be entitled to either maternity leave or pay (or allowance) and she must have issued a notice curtailing her maternity leave or, if she is not entitled to maternity leave, she must have curtailed her maternity pay/allowance

Notice requirements – Shared Parental Leave

8 weeks before the first period of SPL starts (except if the child is born early), the mother and father must each give their respective employers:

  • Notice:
    • Of their names
    • The start and end dates of any maternity leave taken by the mother
    • The total amount of SPL available
    • The EWC and, as soon as this is known, the child’s date of birth or date of placement for adoption
    • How much SPL each parent intends to take
    • The dates the employee intends to take SPL

The father must also give notice of any SMP or maternity allowance received by the mother

  • declaration signed by the child’s father that he is the child’s father (birth only), or married to/civil partner/partner of the mother
  • declaration signed by the employee that
    • They satisfy the qualifying conditions
    • The information is accurate
    • They will immediately inform their employer if they cease to qualify for SPL
  • declaration signed by the employee’s partner, stating:
    • Their name, address and NI number
    • They meet the qualifying conditions
    • They consent to the amount of SPL which the employee intends to claim
    • They will immediately inform the employee if they cease to meet the conditions
    • They consent to the processing of this declaration by the employer

Qualifying conditions – Statutory Shared Parental Pay

  • Employee’s average salary for 8 weeks before the 15th week before the EWC must be at least the Lower Earnings Limit (GBP 112 per week from 5 April 2015)
  • Employees must have 26 weeks’ continuous employment prior to the 15th week before the EWC

Note: Each parent must qualify for SSPP in their own right

Notice requirements – Statutory Shared Parental Pay

Stage 1: economic activity test – for your employee’s partner

  • Notice before SSPP is claimed, of:
    • The number of weeks’ SSPP:
      • the employee is entitled to claim
      • the mother intends to claim
      • the father intends to claim
    • Which weeks the employee intends to claim SSPP
  • A declaration signed by the employee that
    • They satisfy the qualifying conditions
    • The information is accurate
    • They will immediately inform their employer if they cease to qualify for SSPP
  • A declaration signed by the employee’s partner, stating:
    • Their name, address and NI number
    • They consent to the employee’s intended claim for SSPP
    • They meet the qualifying conditions
    • They consent to the processing of this information by the employee’s employer
  • The mother’s declaration must also specify:
    • The date her maternity pay period/maternity allowance period began and the number of weeks by which it will be reduced

Note: Employers have the option to request further evidence of entitlement to SSPP, i.e. the child’s birth certificate, name and address of the partner’s employer

Employees’ rights and protection

  • Employment terms:
    • Employees on SPL are entitled to the benefit of all contract terms, except pay
  • Right to return to work:
    • Right to return to the same job - for employees returning from any period of maternity, paternity or AL, or SPL
    • Right to return to the same or a similar job – for employees returning after over 26 weeks’ leave
  • Protection
    • Automatic unfair dismissal if the dismissal is because of reasons connected to SPL
    • Protection from detriment
    • Enhanced protection on redundancy

Changes to Adoption Leave and Adoption Pay

  • For adopters, 26 weeks’ continuous service requirement for AL will be removed
  • The adopter’s partner will still be entitled to 2 weeks’ statutory paternity leave (unless they have taken paid time off to attend adoption appointments) and provided it is taken before the start of SPL
  • Statutory Adoption Pay will be increased to 90% of normal weekly earnings for the first 6 weeks of AL, bringing it into line with SMP.

Jargon Buster

AL – Adoption Leave
APL - Additional paternity leave
EWC - Expected week of childbirth
KIT - “Keeping in touch”
SML - Statutory maternity leave
SMP - Statutory maternity pay
SPL - Shared parental leave
SSPP - Shared statutory parental pay