The Shared Parental Leave Regulations are now in force. Parents of children who are due to be born or adopted on or after 5 April 2015 will be entitled to 50 weeks of shared leave, and have the opportunity to request leave either simultaneously or consecutively, in continuous or discontinuous blocks.
The UK Government set out in its Programme for Government that it would 'encourage shared parenting from the earliest stages of pregnancy - including the promotion of a system of flexible parental leave'. Today the new system comes into force, and employers may expect requests for Shared Parental Leave for parents of children due to be born or adopted on or after 5 April 2015.
Additional Paternity Leave, which currently allows mothers or primary adopters to transfer leave to their partners, will remain in force in respect of children due to be born or adopted prior to 5 April 2015.
What does the new right entail?
The default position for parents remains that they are entitled to 52 weeks' maternity/adoption and 2 weeks' paternity leave. However, if the mother or primary adopter opts to curtail their maternity/adoption leave period, the remaining leave can be divided between the parents. Please note that it remains compulsory for a mother to take 2 weeks’ maternity leave following the birth of her child and her maternity leave can only be shared after that time (so, in theory, up to 50 weeks of the maternity leave may be shared).
The parents then have the right to request whichever pattern of leave they wish, although this is subject to the employers of both agreeing to that pattern.
How does Shared Parental Leave differ from Additional Paternity Leave?
- Shared Parental Leave is more flexible and can be tailored to each family's requirements as long as these fit with the parents' employers;
- parents can take leave at the same time;
- parents can take leave in a number of blocks;
- fathers/partners are able to take a far longer period of leave up to a maximum of 50 weeks (compared to up to 26 weeks from the 20th week after the baby was born under the Additional Paternity Leave provisions).
What notifications are required?
The administration of the Shared Parental Leave right is more complex than the previous system. To qualify for the right, employees must provide the following notices to their respective employers:
- Notice to curtail maternity leave;
- Notice of entitlement and intention to take Shared Parental Leave; and
- Period of leave notice.
There are complex provisions in place relating to when the curtailment notice may be revoked. There is also the potential for three separate period of leave notices to be issued.
Are employers bound to provide the requested leave?
Where the eligibility requirements are satisfied and notices are provided 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.
What about pay?
Employees who are eligible will be entitled to up to 37 weeks’ statutory shared parental pay which may be shared between parents.
It will be interesting to see whether employers choose to make enhanced pay available to those on Shared Parental Leave, if they currently enhance maternity pay. The Civil Service announced in October that they were intending to enhance shared parental pay, and other employers may follow suit. There is an argument that failure to do so may lead to indirect sex discrimination claims. The point was raised, unsuccessfully, in the case Shuter –v- Ford Motor Company (3203504/13) in relation to the Additional Paternity Pay provisions, but this failed in large part due to the particular factors of the workforce in question.
In a similar way to other family leave rights, there is a right not to be unfairly dismissed or subject to a detriment as a result of taking or intending to take SPL.
There are also provisions which replicate those relating to maternity leave in relation to the right to return to the same role, if no more than 26 weeks’ leave is taken, or a “suitable and appropriate” role where a longer period of consecutive leave is taken and it is not reasonably practicable for the employee to return to their former role.
Employees are entitled to 20 additional keeping in touch days (known as “SPLIT” days) during the Shared Parental Leave period.
The notification requirements are complicated and so it would be beneficial for employers to put in place a clear Shared Parental Leave policy, including the relevant forms for employees to complete. Providing training to managers would also be useful given the challenges of the new rules. It also is recommended that employers give thought to whether to enhance pay for employees taking Shared Parental Leave.