The new shared parental leave system applies to parents who meet the eligibility criteria and whose child’s expected week of childbirth begins on or after 5 April 2015, or who are matched or placed for adoption from that date. So parents could potentially qualify for SPL from December 2014, if their child is due from 5 April 2015 but is born prematurely. This means employers should start considering their shared parental leave policies, including any enhanced shared parental pay provisions, as soon as possible, and their systems must be ready to process requests for SPL by 1 December 2014. The Department for Business, Innovation and Skills has announced that it is working on a range of information and guidance which will start becoming available soon, including online tools to help employers and employees understand and access the new shared parental leave and pay system. But before employers finalise their policies, key issues you need to grapple with include: –– If you currently provide enhanced maternity pay, will the level of pay remain the same? ––Will you provide enhanced shared parental pay – if so, will this be at the same level as enhanced maternity pay? What about return to work bonuses? ––What systems are needed to minimise abuse and to ensure correct pay and leave is given? For example, verifying evidence of eligibility, monitoring leave taken –– How can you ensure fair treatment of requests for discontinuous leave to reduce risk of discrimination claims? ––What disciplinary action, if any, will be taken for abusing the system eg if a parent on SPL is not caring for their child, and for example is instead on holiday with friends? What next? These issues will be explored in more detail at our workshops planned for September 2014. Government guidance due to be published some time this year may also help, but in the meantime, to help employers get to grips with the proposals, we have set out in this Briefing a summary of the proposed rules as set out in the draft regulations. As these have not yet been published in final form, they may be subject to change. We expect all draft regulations to be published in final form by the end of September 2014 at the latest. Once we know the final rules, we will publish a revised Briefing. UK update Employment 16 July 2014 The detail: Top 10 points to know … –– For either parent to be eligible for SPL, the mother must end her SML –– There is no continuous employment requirement for SML or adoption leave but employees taking SPL must have 26 weeks’ continuous employment at the 15th week before the EWC –– There are different eligibility criteria for SPL and SSPP –– Each parent must qualify for SPL and SSPP in their own right –– In some cases, only the father will qualify for SPL (e.g. where the mother is a worker or is self-employed) –– SSPP is paid at the same rate as SMP –– Reasons for agreeing/ refusing SPL requests should be documented carefully –– Each parent on SPL can take 20 KIT days, in addition to the 10 KIT days for maternity leave –– Current rights to statutory unpaid parental leave are unaffected by SPL (18 weeks’ leave until the child is 5 (or 18 if disabled)) –– Ordinary paternity leave will remain but APL will go Shared Parental Leave – the key provisions –– Eligible parents can take up to 52 weeks’ SPL: –– First 2 weeks are compulsory maternity leave –– Remaining 50 weeks are available for sharing –– Leave can be taken consecutively or concurrently – but the total time taken by both parents cannot exceed 52 weeks –– Leave can be taken in a minimum of one week blocks (part of a week is treated as a whole week) –– Cut-off point for taking SPL is 52 weeks from birth/adoption –– Default position for mothers: 52 weeks’ maternity leave and 39 weeks’ pay –– Fathers will still be entitled to 2 weeks’ ordinary paternity leave (unless they have already taken SPL) ––Notice to take SPL is binding unless: –– Parent discovers they do not qualify for SPL ––Mother gave notice before birth of child – she can change her mind up to 6 weeks after the birth –– Parents must agree the timing and periods of leave with their employer –– If they cannot agree, it will default to a single block of leave, to commence on a date specified by the employee, or the employee can withdraw the request –– Each parent can make a maximum of 3 notifications for leave, or changes to periods of leave – but the employer and employee can mutually agree additional changes –– Employees must provide a non-binding indication of their expected pattern of leave 8 weeks before the start date of the first period of SPL Qualifying conditions – Shared Parental Leave –– To qualify for SPL, the mother and father must: –– Have caring responsibility for the child –– Have given notice to their employer of their entitlement to SPL –– Have complied with their respective employer’s request for evidence –– Have given the required notice –– There is a 2 stage eligibility test for SPL: Stage 1: economic activity test – for your employee’s partner –– An individual’s partner must have: ––Worked for any 26 out of the 66 weeks before the EWC, and –– Earned at least GBP 30 gross salary per week for any 13 of those weeks Eligibility for SPL for one parent is dependent on the other parent passing the economic activity test Stage 2: individual test – for your employee –– The parent must be employed: –– Have 26 weeks’ continuous service with the employer at the 15th week before the EWC, and –– Still be working for the same employer when they take SPL Note: Each parent must qualify for SPL in their own right –– For the mother to qualify for SPL, she must be entitled to SML, and have curtailed that leave –– For the father to qualify for SPL, the mother must be entitled to SMP/ maternity allowance/SML, and have curtailed that pay/allowance/leave Notice requirements – Shared Parental Leave 8 weeks before the first period of SPL starts (except if the child is born early), the mother and father must each give their respective employers: ––Notice –– Of their names –– The start and end dates of any maternity leave taken by the mother –– The total amount of SPL available –– The EWC and child’s date of birth –– How much SPL each parent intends to take –– An indication of when the employee intends to take SPL –– The father must also give notice of any SMP or maternity allowance received by the mother –– A declaration signed by the employee that –– They satisfy the qualifying conditions –– The information is accurate –– They will immediately inform their employer if they cease to qualify for SPL –– A declaration signed by the employee’s partner, stating: –– Their name, address and NI number –– they meet the qualifying conditions –– They consent to the employee’s intended claim for SPL –– They will immediately inform the employee if they cease to meet the conditions Qualifying conditions – Statutory Shared Parental Pay –– Employee’s average salary for 8 weeks before the 15th week before the EWC must be at least Lower Earnings Limit –– Employee must have 26 weeks’ continuous employment prior to 15th week before the EWC Note: Each parent must qualify for SSPP in their own right Employees’ rights and protection –– Employment terms: –– Employees on SPL are entitled to the benefit of all contract terms, except pay –– Right to return to work: –– Right to return to the same job - for employees returning from any period of maternity, paternity or adoption leave, or SPL –– Right to return to the same or a similar job – for employees returning after over 26 weeks’ leave –– Protection –– Automatically unfair dismissal if the dismissal is because of reasons connected to SPL –– Protection from detriment –– Enhanced protection on redundancy Notice requirements – Statutory Shared Parental Pay –– 8 weeks’ notice before SSPP is claimed, of: –– The number of weeks’ SSPP the employee is entitled to claim –– The number of weeks’ SSPP the mother intends to claim –– The number of weeks’ SSPP the father intends to claim ––Which weeks the employee intends to claim SSPP –– A declaration signed by the employee that –– They satisfy the qualifying conditions –– The information is accurate –– They will immediately inform their employer if they cease to qualify for SSPP –– A declaration signed by the employee’s partner, stating: –– Their name, address and NI number –– They consent to the employee’s intended claim for SSPP –– They meet the qualifying conditions –– They will immediately inform the employee if they cease to meet those conditions –– They consent to the processing of this information by the employee’s employer –– The mother’s declaration must also specify: –– The date her maternity pay period/ maternity allowance period began and the number of weeks by which it will be reduced –– Employers have the option to request further evidence of entitlement to SSPP, e.g. the child’s birth certificate, name and address of the partner’s employer CC005566 - July 2014 Further information If you would like further information on any issue raised in this update please contact: Chris Holme E: firstname.lastname@example.org Nick Dent E: email@example.com Clyde & Co LLP The St Botolph Building 138 Houndsditch London EC3A 7AR T: +44 (0)20 7876 5000 F: +44 (0)20 7876 5111 Further advice should be taken before relying on the contents of this summary. 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Authorised and regulated by the Solicitors Regulation Authority. © Clyde & Co LLP 2014 Changes to Adoption Leave –– For adopters, 26 weeks’ continuous service requirement for adoption leave will be removed –– Fathers will still be entitled to 2 weeks’ ordinary statutory paternity leave (unless they have taken paid time off to attend adoption appointments) Jargon Buster EWC - Expected week of childbirth APL - Additional paternity leave KIT - “Keeping in touch” SML - Statutory maternity leave SMP - Statutory maternity pay SPL - Statutory parental leave SSPP - Shared statutory parental pay Warning: The information contained in this Briefing is based on draft regulations which may be subject to change. Note: This Briefing focuses on the right to SPL on the birth of a child but similar provisions apply where a child is adopted; although the Briefing refers to the child’s father, qualifying partners will also be eligible for SPL.