Six months ago, the introduction of the shared parental leave (SPL) system was imminent, and many businesses were frantically trying to put in place a SPL policy and get to grips with the complex legislation. Since then, employers have (in our experience) received relatively few requests from employees looking to take SPL, but the requests that have been received have thrown up some common questions. We have set these out below along with a brief explanation of the answer.
Can a father take SPL if a mother is still on maternity leave?
The legislation is slightly ambiguous on this point. However, the Government guidance states that a father can take SPL at the same time as the mother is on maternity leave, provided that the mother has given notice to curtail her maternity leave.
Do we have to pay enhanced Shared Parental Pay (ShPP) if we pay enhanced maternity pay?
The Government has advised that there is no obligation on employers to enhance pay for employees taking SPL. Nevertheless, there is a risk that the provision of enhanced maternity pay but not enhanced ShPP could amount to indirect discrimination. Indirect discrimination can be objectively justified and as such, if an employer does adopt this approach, we would recommend that it considers the rationale for its decision and documents this. For example, if an employer has problems recruiting and retaining women, it might be able to objectively justify its approach on this basis. Similarly, if an employer has problems with encouraging women to return to work following maternity leave, it might be able to justify paying a return to work bonus to employees returning from maternity leave but not those returning from SPL. However, the fact that it is simply too expensive to pay enhanced pay or return to work bonuses to employees on SPL will not be sufficient.
What happens if both the mother and father work for the same employer and want to take a period of SPL?
Both employees will be entitled to take SPL provided that they meet the general eligibility and notice requirements. However, many employers have limited the amount of ShPP available to parents in these circumstances, with both parents only being entitled to share ‘one pot’ of enhanced ShPP, rather than each having a separate entitlement.
Are SPLIT days pro-rated?
SPLIT days are not pro-rated, and in the case of mothers, are in addition to her 10 KIT days.
How much flexibility do we have in declining discontinuous leave requests?
Employers have absolute discretion to refuse requests for discontinuous periods of leave. However, we would recommend that employers introduce guidance on its approach to such requests to ensure that a consistent approach is taken. In the event that the request is declined, the reasons for this should be clearly communicated to the employee. This is to prevent any claims of discrimination e.g. that male employees are discriminated against as their requests are overwhelmingly refused in comparison with the requests of female employees.
It is also worth noting that even if a request is refused, employees may be able to break up their SPL by commencing a continuous block of leave and then requesting to vary that leave.
What happens if the baby is late and the mother has booked to start SPL 2 weeks after her due date?
A mother must take at least 2 weeks’ maternity leave immediately following the birth, this is known as compulsory maternity leave. Surprisingly the Government Guidance states that if the child is late and arrives when the mother is supposed to be on SPL, her leave curtailment notice will be invalid. The mother would therefore need to submit a new leave curtailment notice giving at least 8 weeks’ notice, meaning that she would have to take a further 8 weeks of maternity leave before commencing SPL. Therefore, although the Regulations make provision for babies born early, by allowing reasonable notice, the same does not apply to babies born late. Mothers wishing to take as little maternity leave as possible post birth should be advised of this, and may wish to factor in a 4 week period of post-birth maternity leave before starting SPL to ensure that they do not need to submit an 8 week leave curtailment notice.
What happens if the employee’s employment is terminated before or during any period of SPL?
To qualify for ShPP, an employee needs to remain in employment in the week before they are due to start receiving ShPP (there is no such requirement for statutory maternity pay). This means that if an employee’s employment ends more than one week before their ShPP is due to commence, the employee will lose their entitlement to ShPP. If however their employment ends less than a week before their ShPP is due to commence, they will remain entitled to ShPP in respect of any SPL already booked.
The position is less clear in the event that an employee takes a period of discontinuous leave and their employment is terminated after they have taken their first period of discontinuous leave, but before they have taken any further periods of leave. This is because the legislation is not clear as to whether the employee only has to remain in employment in the week before they first take SPL, or whether they need to be in employment in the week before each period of SPL. If this situation does arise, we would recommend that the employer seeks specific legal advice.