The introduction of a flexible system for parents to take leave on the birth or adoption of a child has been a feature of all of the main political parties' manifestos and agendas in recent years but, on 1st December, a new system of "Shared Parental Leave" ("SPL") came into force. Elizabeth Evans and Catherine Ridd from Morgan Denton Jones explain the key differences and responsibilities for both employers and employees.
In April 2011, the outgoing Labour government introduced the additional paternity leave system, designed to allow fathers to take part of the mother's unused entitlement to leave. In reality, this had very little impact (only about 0.6% of eligible employees made use of it) but now a new system has come into force to replace additional paternity leave and with the intention of addressing some of its pitfalls (particularly in relation to pay).
For ease, we refer to "father" and "mother" throughout this article but recognise that this may not always be the child's biological father and could be the mother or primary adopter's spouse, civil partner or partner. Similarly we make reference to "maternity leave" but the rights referred to in this note apply equally to adoptive parents and adoption leave.
What is SPL?
SPL entitles parents of babies due, or children placed for adoption on or after 5 April 2015, to share leave. In other words, both the mother and the father of the child can utilise the entitlement to leave of up to 50 weeks (the law still requires a period of 2 weeks' compulsory maternity leave).
One of the key changes is that SPL can be taken in blocks, with employees now able to stop and start their leave, and return to work in between, without forfeiting their entitlement. For example, a mother may choose to work alternately with her partner and take leave every other month.
Employees can also choose to take SPL at the same time as their partner, each taking up to 25 weeks concurrently. All in all, the aim of these changes is to offer employees more choice and flexibility around the responsibility and timing of leave (which may go some way towards challenging gender stereotypes when it comes to caring for children).
How does it work?
Employees are not obliged to take SPL; the default position on the birth of a child remains that the mother will take 52 weeks of maternity leave. If the mother wishes to take SPL then she will need to "opt in" by notifying her employer of her intention to end her maternity leave and share the untaken leave with the father.
An employee can choose to opt in to SPL at any time within the 52 week window, provided that they give at last 8 weeks' prior notice (and have completed the 2 weeks' compulsory maternity leave).
Where an employee requests to take one continuous period of SPL, this must be accepted by their employer. Where an employee requests discontinuous periods of leave however, they must give notice and the employer has two weeks to either accept the proposal, propose an alternative, or refuse it.
Where an employer refuses the periods requested, the employee may choose to take the total amount of leave
requested as a continuous period or withdraw their original notice. By law, an employee can serve up to three notices of SPL.
There are certain eligibility requirements that the employee and their partner must satisfy in order to qualify for SPL including in relation to continuity of employment and earnings, which are largely the same as the requirements for maternity leave and paternity leave respectively. Employers may request that employees provide evidence of their entitlement to take SPL.
As with current forms of leave, during SPL all of the employee's terms and conditions apply except for those
relating to pay. There are also additional provisions outlined in the regulations for 'Keeping In Touch' days, additional redundancy protections and the right to return to work after a period of SPL.
What about pay?
Employees are entitled to receive shared parental pay ("ShPP") for up to 37 weeks (the first 2 weeks of the 39 being
the compulsory period of maternity leave). This is payable at the same rate as the flat statutory maternity pay rate payable during weeks 7-39 of maternity leave (currently £138.18 per week or 90% of the employee's earnings, whichever is lower). If enhanced benefits (pay or otherwise) will be offered during SPL, they should be provided equally to male and female employees.
There has been some debate as to whether employers who offer enhanced maternity pay, should also offer enhanced
ShPP. To be clear, there is no express obligation under the legislation to do so and the government does appear to be of the view that this is not required. However, depending on how the case law develops employees may be able to argue either now or in the future that failure to do so amounts to discrimination. The most likely claim is for indirect discrimination by men, on the basis that paying enhanced maternity pay but not enhanced ShPP puts men at a particular disadvantage compared with women. It has been accepted, in the context of additional paternity leave, that such a claim could succeed and it may be difficult for employers to objectively justify such a decision on the grounds of cost alone.
Nonetheless, employers may want to retain a practice of treating maternity and SPL differently, pending further clarification by the courts. Employers can point to the government's technical guidance to support this approach, but should recognise that there remains some degree of risk.
Employers are best advised to draft an SPL policy setting out the various requirements and rights, especially in relation to notification and eligibility for SPL, which are relatively complicated. It is also advisable for employers to engage with their employees about SPL and how it will work; employers may find that the new system provides them with more flexibility too.
Should you wish to discuss SPL and how it might affect your business in more detail, please feel free to contact one of the team who will be happy to help. In addition, if you would like us to draft a SPL policy for you, then we can do so for £300 plus VAT.