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Hello and welcome to our latest employment video. My name is Paul Griffin and I’m Head of the Norton Rose Fulbright Employment team in London.
In today’s video we’ll be looking at the new right to shared parental leave which will apply to the working parents of children due on or after April 5 next year.
Don’t forget to have a go at answering our quiz question at the end of the video for the chance to win a bottle of champagne.
The Government first announced its proposal to introduce a new system of flexible parental leave at the beginning of 2011. Its aim was to allow working families more choice over how they look after their children in the first year. Since then there have been a number of consultations which have led to the publication of several sets of regulations setting out the details of the new right.
The key regulations are to come into force on the 1st of December this year and will apply to babies due - or placed for adoption - on or after the 5th of April 2015.
The current law
Before I outline the details of the new right, here’s a quick reminder of the current law on the various statutory parental leave rights.
At the moment, employed mothers, from “day one” of their employment, are entitled to 52 weeks’ statutory maternity leave. Of those 52 weeks, 39 are paid – 6 weeks at 90% of average weekly earnings, and the remainder at the lower of 90% of average weekly earnings or the flat statutory rate.
Employed fathers – and the partners of mothers – who’ve been employed for at least 26 weeks, are entitled to two weeks ordinary paternity leave to be taken within 8 weeks of the child’s birth. This leave is paid at the flat statutory rate.
They may also be eligible for 26 weeks’ additional paternity leave, if the mother has returned to work early – and they’ll be entitled to additional paternity pay at the flat rate for the balance of any statutory pay not taken by the mother.
In addition, each parent who’s been employed for at least one year, is entitled to 18 weeks’ UNPAID parental leave which must be taken before the child’s 5th birthday (or 18th birthday if the child is disabled).
Finally, adoptive parents who’ve been employed for at least 26 weeks, are entitled to 52 weeks’ adoption leave, 39 weeks of which is paid at the flat statutory rate. Only one adoptive parent is entitled to adoption leave – the other is entitled to paternity leave.
Shared parental leave
The various sets of regulations governing the new right to shared parental leave will come into force on the 1st of December this year. The new provisions will apply to the parents of children due - or placed for adoption - on or after the 5th of April 2015.
The existing “day one” right to statutory maternity leave will remain as the default – so if mothers wish to do so, they can continue to take leave and pay in the same was as they do now.
However, once they’ve taken compulsory maternity leave, they’ll then have the option to end their maternity leave early and – as long as each parent satisfies the eligibility criteria – the untaken balance of maternity leave and pay can be taken as shared parental leave and pay.
As long as the total period of leave taken by the couple – in addition to the two-weeks’ compulsory maternity leave – doesn’t exceed 50 weeks – they can take the shared parental leave in a variety of ways and different blocks of time – and they may take the leave together or separately.
So, in theory, after the mother has taken two weeks’ compulsory maternity leave, the couple could take a period of shared parental leave together, then one could take leave on their own, and then the other could take over for the remaining balance of their entitlement. Generally speaking, this will all be subject to agreement with each parent’s employer – but more on that in a minute.
The total entitlement to shared parental pay will be no more than 39 weeks, and will always be at the lower of 90% of average weekly earnings or the flat statutory rate - unlike the first 6 weeks of statutory maternity leave which is paid at 90% of average weekly earnings. So for purely financial reasons, unless the mother earns less than the flat statutory rate, it will always make sense for her to take at least 6 weeks of her maternity leave before switching to the shared parental leave system.
Adoptive parents will also be eligible for shared parental leave in the same way as birth parents, if the primary adopter chooses to end their adoption leave early.
The eligibility criteria
It’s not possible for either parent to take shared parental leave unless they BOTH meet certain eligibility criteria.
If the mother wishes to take shared parental leave, she’ll first have to satisfy the continuity of employment test – this means that she’ll have to have been employed for at least 26 weeks at the end of the 15th week before the due date.
She’ll also have to be entitled to statutory maternity leave and have curtailed her leave by either returning to work, or by serving a notice of her intention to do so. And she must have served the required notices on her employer as set out in the regulations. These notices include certain declarations from her partner.
In addition, her partner will have to satisfy the “employment and earnings” test. This means that he’ll have to have worked, whether employed or self-employed, for at least 26 out of the 66 weeks before the baby’s due date AND have earned an average of at least £30 for 13 of those 26 weeks.
And the same test applies in reverse for the mother’s partner to be able to take shared parental leave.
In the most straightforward case, both parents will be employees with at least 26 weeks’ service and will both be entitled to take shared parental leave. It’s possible, however, for a situation to arise where one of the parents is employed and the other is self-employed - and whilst the self-employed parent will have no entitlement to take shared parental leave themselves, as long as they’ve earned enough to pass the employment and earnings test, their employed partner will have the right to access the shared parental leave system.
Points to note
The provisions governing the new shared parental leave system are complicated and government guidance has been published to help employers and employees to understand the practicalities. Acas has also produced detailed guidance, including a sample shared parental leave policy, a flow chart of the process and various template letters – all of which can be downloaded from their website.
There are a few particular points to note about the new system.
Firstly, shared parental leave may be taken as one continuous period of leave or in discontinuous blocks.
If the employee requests a continuous block of leave, they are entitled to take the leave requested. If discontinuous blocks of leave are requested, it’s up to the employer whether to agree to the request. If not, there’s a period of two weeks within which to try to reach agreement. If this fails, the employee is entitled to take the leave in one continuous block.
The second point to note is that an eligible employee must give at least 8 weeks’ notice of their intention to take shared parental leave. They’re also entitled to ask to take more leave, or change the pattern of leave requested, on two further occasions – again on at least 8 weeks’ notice before the start of the leave requested. Each time the request will be dealt with in the same way – if a continuous block of leave is requested, it must be granted, but if discontinuous, this is subject to agreement.
Shared parental leave must also be taken in blocks of whole weeks. It can’t be taken as a few days here and a few days there.
Whatever the planned leave, it must be taken within 52 weeks of the birth or placement for adoption – so if the parents together have not taken their full entitlement to leave by this date, they’ll lose it.
It’s also possible for one parent to be on shared parental leave at the same time as the other parent is absent on shared parental leave, maternity, paternity or unpaid parental leave. This means, for example, that as long as the mother has served the required notice to curtail her maternity leave at a future date, and all the other criteria have been met, the father can start shared parental leave whilst the mother is still on maternity leave.
Finally, the terms and conditions of employment, with the exception of the right to remuneration, apply throughout shared parental leave - and there’s a right to return to the same job after a period of leave of no more than 26 weeks in total, whether taken in a continuous block or not.
Other planned changes
When the new shared parental leave system comes into force, the existing right to additional paternity leave will go - but the right to two weeks’ ordinary paternity leave will remain - although it can’t be taken if the father has already taken shared parental leave.
The 26-week qualifying period of service for adoption leave will also go - so that primary adopters will be entitled to adoption leave from “day one” of employment.
And the rate of statutory adoption pay is to be brought into line with statutory maternity pay, so that it’s payable at 90% of average earnings for the first 6 weeks of leave before reducing to the flat statutory rate.
Finally, the Government’s plans to allow unpaid parental leave to be taken at any time up to a child’s 18th birthday are also to come into force on the 5th of April next year.
The new right to shared parental leave will be in force in the very near future, and employers will soon receive requests for shared parental leave from employees who are already pregnant or from their partners. This means that employers should already be planning how to deal with these requests and considering the changes necessary to existing family leave policies.
ng at the new right to shared parental leave which will apply to the working parents of children due on or after April 5 next year.