With the Shared Parental Leave Regulations now firmly in force, we consider the impact that the regulations have on businesses.

What is shared parental leave?

Shared parental leave (SPL) will not replace the current statutory maternity, adoption and paternity leave regime. SPL is optional for parents and is intended to give working families more flexibility and choices over when they take leave during the first year of their child’s life or adoption.

The current two week statutory paternity leave provisions will remain available, meaning that parents can still choose to take statutory paternity leave following the birth or adoption placement. Therefore fathers and partners may wish to take both the two weeks statutory paternity leave and then SPL.

The additional paternity leave scheme introduced in April 2011, which allows a child’s father or a mother’s partner to take up to 26 weeks leave has been abolished from 5 April 2015 and effectively replaced by shared parental leave. Therefore, if expectant fathers or partners wish to take a longer period of family leave, they would need to do so via the shared parental leave regime.

How do employees take SPL?

1. End maternity leave

The mother can end the maternity leave by serving a curtailment notice to end maternity leave and pay/allowance. The curtailment notice must be given at least 8 weeks before the maternity leave ends. The remaining maternity leave and pay can be shared with her partner.

2. Entitlement and notice to take SPL

Employees must provide a notice of their intention to take SPL including both partners’ details, maternity leave taken, balance of leave remaining, baby’s date of birth, declaration that they qualify for SPL and shared parental pay (ShPP).

3. Booking notice

Employees must give 8 weeks notice before they are able to take SPL. Employees can give their employer up to 3 separate notices to take leave. Each notice can be for a block of leave, the minimum period of leave must be one week. The notice must indicate whether it is continuous or discontinuous leave.

What is continuous leave?

Continuous leave is where an employee requests one individual block of leave, which would be for example 8 weeks, 12 weeks or 20 weeks. Employers cannot refuse a request for continuous leave.

What is discontinuous leave?

Discontinuous leave is where the request includes a combination of time away from work, and time at work. For example an employee may request 4 weeks leave, 2 weeks at work, 3 weeks leave and return to work. Unlike continuous leave employers do not have to agree to a request for discontinuous leave. However, there should be discussion to see if an alternative leave pattern can be accommodated. If it cannot, the employee can choose to take the leave in one continuous block.

Shared parental pay – Should it be enhanced?

There is nothing in the legislation that states that shared parental pay should be enhanced if the organisation enhances maternity pay. Indeed the guidance produced by BIS provides “There is no legal requirement for organisations to provide occupational shared parental leave schemes”. Despite this, there is current uncertainty as to whether this might amount to indirect sex discrimination.

To bring a claim of indirect sex discrimination an individual will need to establish:

  • A provision, criterion or practice (PCP) which appears to be gender neutral, and
  • The PCP puts persons of the Claimant’s sex at a particular disadvantage (group disadvantage)
    • Puts the Claimant at that disadvantage, and
    • The employer is unable to justify the PCP on business grounds

Therefore, an employee in an organisation that enhances maternity pay but does not enhance shared parental pay would be able to demonstrate the existence of a PCP however it is not clear whether there would be a group disadvantage as this would depend on statistics and take up of shared parental leave by men and women. Currently, because the regulations are so new the statistics are not available to show a group disadvantage.

If there was a group disadvantage, then the employer would have to provide business justification as to why it has an enhanced maternity pay regime and not an enhanced shared parental pay regime.

Summary

It is unclear how these regulations will impact on organisations. What is clear is that a regime of discontinuous leave will cause significant difficulties for organisations trying to manage work and client expectations and also may give rise to an increase in the number of grievances if requests are not approved. It is important to have in place a SPL and ShPP policy so that employees understand what they are entitled to and how managers can manage requests made for shared parental leave.