Shared Parental Leave and pay overview: the birth of a new scheme

Shared Parental Leave (SPL) is a paid family friendly leave
that mothers and their spouses/partners may take when the baby is due on or
after 5^th April 2015. The
idea is to give parents a choice in how to look after their offspring during
the first year of life. As a result, assuming
eligibility criteria are met, they may choose to take a period of leave
together or separately. They may opt to take the leave in one continuous block,
or to return to work on and off throughout the first year of the child’s life,
taking discontinuous blocks of leave. Before taking SPL the mother must end or curtail her maternity leave and
both partners must give statutory notifications to their employers, 8 weeks
before taking the leave.

The principle behind SPL is straightforward; the rules are
numerous and complex. The rules vary depending on who is taking the SPL and
depending on whether both partners are employees.

Eligibility

To be eligible, either the mother or spouse/partner must be
a qualifying employee. This means
that either the mother or spouse must have worked for the company for 26 weeks
before the end of the fifteenth week before the expected birth. The other partner
in the couple must have been economically active but not necessarily an
employee, working for at least 26 weeks out of the preceding 66 weeks, and
earning £30 per week in at least 13 of those weeks.

Consequently, where one member of the couple is self-employed
or an agency worker, for example, they may still benefit from SPL so that the
employee can take some of the leave and return to work, while the partner makes
use of any remaining SPL. To be
absolutely clear: as long as the mother’s partner is a qualifying employee, the
mother does not need to be an employee in order for SPL to be available (or
vice versa).

Both partners must have the main responsibility for the
child and both must comply with the notification requirements explained below.

How long is shared
parental leave?

Eligible employees may take up to 52 weeks as SPL. It must be taken before the child’s first
birthday.  In practice, however, the
mother must take compulsory maternity leave (usually the first two weeks
following birth) and the partner will most likely opt to take two weeks ordinary
paternity leave, rather than lose it.

Employees may take up to three periods, or blocks, of SPL. In some cases the employer must grant the
leave, and on other occasions, the employer may be entitled to refuse the
request of leave, where, for example, the leave requested is in discontinuous
blocks.

Notification
requirements

There are various notification requirements, which must
satisfy statutory requirements. Employers are advised to have pre prepared notification
documents ready for employees to complete, to help simplify the process.

In all cases where the mother is the employee, she must have
either ended her maternity leave or curtailed it, by way of a Curtailment Notice. Further notices
known as: Entitlement and Intention
Notices; and Booking Notices,
must also be given to the employer, 8 weeks in advance of taking the leave.
They must contain sufficient information to notify the employer of the
intention to take SPL, with the anticipated dates and duration of any period of
SPL, with signed declarations by each parent.

Keeping in touch

Each parent who takes SPL is entitled to a maximum of 20
“SPLIT” days (SPL “In-Touch”) days, enabling reasonable contact with employees from
time to time during SPL. This is in
addition to any “keeping in touch” (KIT) days taken during maternity leave.

Shared parental pay

Shared parental pay operates on a similar basis to SPL and
is payable for up to 39 weeks as long as the relevant criteria are met. It is
paid at a statutory amount and can be shared between the parents (minus any
maternity payments already made during, for example, the compulsory maternity
leave period). As with SPL, the mother
must end her maternity pay and have either ended or curtailed any maternity
leave. Once again, one parent must be an employee and the other must meet the
minimum earnings requirements. Similar
notification requirements must be satisfied and both parents must have the main
duties of care and responsibility for the child.

Conclusion

We anticipate that a number of aspects of SPL will need to
be tried, tested and clarified. It is
not clear whether employers will face discrimination claims if they offer
enhanced maternity rates, but only statutory rates for SPL. Also, what is the position if employers allow
employees SPL without insisting on 8 weeks’ notice? Potentially, they may not
be able to reclaim payments from HMRC where the employee gives less than 8 weeks’
notice.

Whether or not SPL will have a significant impact on working
arrangements is yet to be seen but it has the potential to be a useful scheme
whereby employers will have a good chance of retaining employees. The male and
female work force should be better equipped to remain involved with work, while
also having the option to look after infants. SPL enables regular flexibility
for workers to spend time with young children and to work, simultaneously
giving employers the right to insist on adequate notice periods so they can
prepare for periods of absence.

For more information, please contact our legal team at
Lawspeed on 01273 236 236. ARC members’ can refer to the FAQs on the ARC
website by clicking here.