Parents with a baby that is due on or after 5 April will be able to take advantage of the new statutory scheme for Shared Parental Leave (SPL) and Statutory Shared Parental Pay (SSPP). The scheme allows a woman who is eligible for statutory maternity leave and statutory maternity pay to choose to bring these entitlements to an early end and to share the balance with either the father of her child, her husband, civil partner or partner.

Employees who adopt (on or after 5 April 2015) will enjoy similar rights to shared parental leave and pay as will intended parents of a child born through a surrogacy arrangement.

SPL should not be confused with the right to Parental Leave which entitles qualifying parents of both sexes to take up to 18 weeks’ unpaid leave to care for a child. Such leave can currently only be taken up to a child’s fifth birthday (except where a child is disabled in which case leave may be taken up to his or her 18th birthday). The age limit on Parental Leave will, however, increase from 5 years to 18 years for all children in April 2015.

The new scheme

Under the new scheme a woman who is eligible for Statutory Maternity Leave and Statutory Maternity Pay can choose to bring her leave and pay to an early end and share the balance with the father/her partner. This is designed to give parents more flexibility in how they share the care of their child in the first year of its life. They will be able to share a pot of leave and decide to be off work at the same time and/or take it in turns to have periods of leave to look after the child.

Although the first two weeks following the birth will remain reserved for the mother (referred to as ‘compulsory maternity leave’), the remaining 50 weeks can be taken by either the mother or the father (or the mother’s husband, civil partner or partner), subject to certain eligibility and notification requirements. The father of the child will, of course, not necessarily be the mother’s husband or partner. The mother can decide with whom she wishes to share the leave and pay. She cannot, however, choose to share it with more than one person in respect of the same child.

The additional paternity leave scheme, which came into force in 2011, has allowed the father to take up to six months’ leave consequent on the mother returning to work. However, take-up has been low and it will be abolished on 5 April 2015 to make way for SPL. Ordinary paternity leave and pay for one or two weeks will continue to be available.

Eligibility for SPL

Employees can benefit from the right to SPL if:

  • they have been working with the same employer for 26 weeks by the end of the ‘relevant week’ (the 15th week before the expected week of birth) and remain in continuous employment until the week before they start their SPL;
  • they share the main caring responsibility for the child;
  • the mother is entitled to Statutory Maternity Leave and/or Statutory Maternity Pay (or maternity allowance) and has ended that entitlement or has given notice to reduce it;
  • the employee’s spouse/partner satisfies an ‘employment and earnings test’ (which in essence requires them to have been earning £30 or more a week for 13 of the 66 weeks before the expected week of birth);
  • an appropriate notice of entitlement has to be given to their employer; and
  • a ‘period of leave’ notice has been given to their employer in order to book the period (or periods) of SPL they intend to take.

Eligibility for SSPP

These are the same as for SPL, but with the additional requirement that:

  • the employee’s normal weekly earnings for the eight weeks ending with the ‘relevant week’ (the 15th week before the expected week of birth) must be at least the lower earnings limit for paying Class 1 NI contributions (£111 a week for tax year 2014/15)
  • during the payment period, the employee must intend to care for the child, be absent from work and be absent on SPL.

Cutting short maternity leave and pay

The mother must cut short her entitlement to statutory maternity leave in order to enable the father (or her partner) to take advantage of SPL. In other words, she must bring forward the date on which her maternity leave period (of up to 52 weeks’) ends.

If the mother is not entitled to Statutory Maternity Leave but is entitled to Statutory Maternity Pay (or maternity allowance), she can enable the father (or her partner) to take SPL (even though she is not entitled to take SPL herself) by curtailing her ‘maternity pay period’ or ‘maternity allowance period’ (i.e. the 39 weeks that a mother is entitled to SMP).

Similarly, she must curtail her maternity pay period or maternity allowance period if she and/or the father (or partner) wish to claim SSPP.

Note that when a mother returns to work before the end of her maternity pay period, but without formally curtailing it, that period continues to ‘run in the background’. This means that if a woman is absent from work for whatever reason in the 39-week period in which her maternity pay period continues to run, her employer must pay her Statutory Maternity Pay and the father (or her partner) will not be entitled to SSPP.

Processes of cutting short maternity leave

There are two ways in which the mother can cut short her entitlement to maternity leave:

  • by returning to work early, giving the standard eight weeks’ notice; or
  • by giving notice to her employer to end her maternity leave on a specific date.

The latter is referred to as a ‘leave curtailment notice’. The mother may end her entitlement to Statutory Maternity Leave by giving her employer a leave curtailment notice. Such a notice needs to be accompanied by one of the following:

  • a notice confirming the mother’s entitlement to SPL; or
  • a written declaration which states that the father (or her partner) has given a notice of entitlement to his employer (referred to as a ‘declaration of consent and entitlement’).

Once the leave curtailment notice has been given to the employer the mother’s Statutory Maternity Leave will end on the leave curtailment date.

Note that it is not the case that the partner can only take the leave as from the leave curtailment date. The effect of the leave curtailment notice is simply to shorten the amount of maternity leave available and to allow the balance to be taken as shared parental leave instead. There is nothing to stop the father from taking SPL while the mother is still on Statutory Maternity Leave, provided the date upon which her Statutory Maternity Leave will end has already been fixed (i.e. she has given her employer a curtailment notice at least eight weeks in advance of the leave curtailment date). Such a notice can only be revoked in certain limited circumstances.

As well as the requirement for an employee to submit a notice of his or her entitlement and intention to take SPL and, in the case of the mother, to provide notification of the decision to curtail any entitlement to Statutory Maternity Leave, the mother and/or her partner, as the case may be, must also submit a ‘booking notice’ in order to book the SPL that he or she wishes to take.

Processes of cutting short maternity pay

In order to curtail the Maternity Pay Period the mother must submit a ‘maternity pay period curtailment notice’ in writing to the person who is liable to pay her Statutory Maternity Pay, specifying the date on which she wants her maternity pay period to end. A mother can only end her Maternity Pay Period on the last day of a week, after the end of her compulsory maternity leave period and at least eight weeks from the date on which she gave the curtailment notice.

This will result in a reduction in the amount of maternity pay available to the mother and allow the remaining balance to be claimed as SSPP. Such a notice can only be withdrawn in very limited circumstances.

Where the employer has an enhanced maternity scheme

The Government has stated that there is no legal requirement for employers to create occupational shared parental pay schemes and it will be entirely at their discretion whether or not they do so.

A man who is not afforded enhanced pay when on SPL is unlikely to succeed in a direct sex discrimination claim (as the proper comparator would be a woman on SPL i.e. a female spouse or civil partner of the mother). They would technically have cause for pursuing an indirect sex discrimination claim. However, employers are likely to be able to put forward an object justification for this.