Blog - 05/01/2015
Shared Parental Leave
Alert: Have you had a Shared Parental Leave Notice? If so, you have two weeks within which to respond!
In a recent survey by the Institute for Public Policy Research it was found that there has been a steady increase in the number of mothers in couple families that earn the same or more than their partner and it is anticipated that that trend will be enhanced by the introduction of the new Regulations on Shared Parental Leave and Pay (SPL Regulations) which gives couples greater flexibility to share time off work after the birth (or adoption) of a child where they share the main responsibility for caring for the child.
The SPL Regulations apply to babies born on or after 5 April 2015. Currently mothers have the right to 52 weeks of maternity leave and subject to some qualification requirements they are entitled to statutory maternity pay for 39 weeks. Under the proposed SPL scheme, mothers will be able to formally end their maternity leave early so that the couple can elect to enter into the SPL scheme.
Under the SPL scheme, 50 weeks of the mother’s former maternity leave will be eligible for parents to share (i.e. excluding the two weeks of compulsory maternity leave immediately following birth). It can be taken concurrently (for example, both taking 26 weeks off after the birth or adoption of their child) or in alternate tranches i.e. the mother taking the first 26 weeks leave and the other parent taking the second 26 weeks leave.
There is a requirement for both parents to be ‘economically active’ in at least 26 of the 66 weeks prior to the expected week of confinement and they must satisfy a minimum earnings threshold but subject to that, where one parent (either the mother or the other parent) is self-employed, the SPL scheme may give greater flexibility in terms of time off than would previously have been available. For example, a mother whose partner is self-employed may have a period of maternity leave and then elect to enter into the SPL scheme which would enable her to return to work and then take a further period of time off at a later date.
A parent who wants to elect to take SPL must give their employer:
- in the case of the mother, a curtailment notice, ending their right to maternity leave;
- a notice of entitlement and intention to take SPL; and
- a period of leave notice.
Each of these must be given at least eight weeks before the period of SPL is to start. Any period of leave notice that requests a continuous period of leave has to be accepted by the employer but if a notice is given that requests discontinuous periods of leave the employer has two weeks within which to agree, negotiate or refuse it. Where it is refused, an employee can choose whether or not to take the time requested as a continuous period or withdraw their notice and serve another period of leave notice.
At the end of the statutory notice and counter notice process, the parties are ‘locked in’ to the SPL arrangements as notified but it is possible for an employee to serve a variation notice to either vary the start or end date, request a continuous period becomes a discontinuous period or vary the amount of leave requested or cancel leave in each case on eight weeks’ notice. Again, where the notice requests discontinuous periods, the employer has two weeks within which to respond.
An employee is limited to serving three period of leave notices including a variation notice.
The notification requirements do not require either parent to give details of their partner’s employer so that each employer can ‘cross check’ the entitlements of the other or the information that has been given but employers are able to request this information from their employee and the employee will be obliged to provide it. There does not however seem to be an obligation for the other partner’s employer to actually share that information with the other affected employer.
Shared Parental Leave Pay
This is frequently abbreviated to ‘ShPP’ and we shall therefore adopt that going forward and refer to mothers and fathers although the entitlement applies to partners also. In broad terms, those who are entitled to SPL are also entitled to ShPP.
There is a great deal of detailed provisions in relation to pay and the eligibility criteria but the Scheme can be summarised as follows:
- if the father is on SPL, it is his employer who pays the ShPP;
- if the mother is on SPL, it is her employer who pays the ShPP;
- the father cannot take any of the mother’s entitlement to the first six weeks of maternity leave at 90% of her (or for that matter, his) earnings. Maternity Pay is different to shared parental leave pay and the right to statutory maternity pay will come to an end if the mother elects to end her maternity leave and take up Shared Parental Leave instead;
- the employer can recoup 92% of the statutory shared parental leave pay from the Government and in some cases, up to 100%; and
- the amount of ShPP in April 2015 is anticipated to be around £139.56 per week.
This is very much an overview of the new scheme and as ever, the devil is in the detail and some question marks arise on the interplay between some sections of the Regulations. However employers are encouraged to put together a Shared Parental Leave policy (which we can help with) and to familiarise themselves with the process and notification requirements because curtailment and notification of entitlement notices will start arriving early in 2015 and if a period of leave notice is served, employers only have a short time within which to respond.
Consideration should also be given as to whether to enhance ShPP and how this compares to any enhanced maternity pay currently offered by employers. Both should be considered when reviewing a company’s employee benefits package.
As ever, if you need further information or advice please contact the Edwin Coe Employment and Immigration Team.
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Please note that this blog is provided for general information only. It is not intended to amount to advice on which you should rely. You must obtain professional or specialist advice before taking, or refraining from, any action on the basis of the content of this blog.
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