The new shared parental leave (SPL) regime represents a huge step forward for parents whose child is due to be born on or after 5 April 2015 and who want to share childcare arrangements between them. The new regime means that parents will be able to share up to 50 weeks leave during the first year of their child’s life. Both parents can take SPL either individually or simultaneously and can take it in discontinuous blocks.
The new provisions will enable parents to be flexible about the way in which a new child is cared for with the aim of enabling more women to stay in the workplace. Parents can decide which one of them will take the main caring role depending on their preferences and circumstances.
The new SPL regime is available to the child’s mother and father or the mother’s spouse, partner or civil partner or a partner who is living in an enduring relationship with the mother.
The regime in brief
SPL applies on both the birth and adoption of a child. This note refers to the birth of a child but the same provisions apply to those adopting a child.
SPL may be taken from the time of the child’s birth until the child’s first birthday. A mother must take 2 weeks compulsory maternity leave after the birth of her child but the remaining 50 weeks can then be taken as SPL and shared with her partner. Both parents can take SPL provided that they satisfy the eligibility requirements. For example, a mother may take 30 weeks maternity leave and then share the remaining 20 as SPL.
Who is eligible for SPL?
To trigger the right to SPL (for one or both parents) the mother must:
- Have a partner;
- Be entitled to maternity leave or statutory maternity pay or allowance; and
- Have curtailed, or given notice to reduce her maternity leave or statutory maternity pay or allowance.
Once SPL has been triggered a parent who wants to take SPL must be:
- An employee;
- Share primary responsibility for the care of the child with the other parent; and
- Have notified their employer of their entitlement to SPL.
A parent wanting to take SPL must satisfy the continuity of employment test i.e. have been employed by their employer for at least 26 weeks at the end of the 15th week before the child’s expected due date and be still working there at the start of the SPL.
In addition the other parent must satisfy the employment and earnings test i.e. in the 66 weeks leading up to the child’s expected due date the parent has worked for at least 26 weeks and earned an average of at least £30 in any 13 weeks.
A mother whose partner is self-employed can still take SPL even though the partner is not eligible to take it.
A father may still qualify for SPL where the mother is self-employed if she is eligible for maternity allowance.
A mother and father may decide that a combination of maternity leave, paternity leave, flexible working requests and annual leave might work better for them than SPL but it is an option to consider if they are eligible.
In order to trigger a right to SPL a mother must have returned to work or given notice to bring her maternity leave to an end early. A mother and her partner must give their employers 8 weeks’ notice of their entitlement and intention to take SPL. If the employee intends to claim ShPP they must also give their employer notice. This can be included in the notice of entitlement to take SPL. There are specific details which need to be given in the notice of entitlement. These are covered in the ACAS guide for employers and should be set out in an employer’s SPL policy so that all employees know how to inform their employer of an entitlement to SPL and what details need to be included.
Shared Parental Pay (ShPP) is paid at a flat rate of £138.18 or 90% of weekly earnings, if lower. It is payable for up to 39 weeks (37 of which can be shared). A woman will need to consider whether SMP would be more lucrative for the first 6 weeks as it is paid as 90% of actual pay. She will also need to consider whether she would rather remain on maternity leave instead of taking SPL for a period if she has a contractual entitlement to paid leave.
Partners can still take 2 weeks Ordinary Parental Leave with ordinary paternity pay as long as this is taken before SPL.
What should employers do to prepare for the new right to SPL?
Employers will need to be aware of the detail of the new regime and ensure that staff are aware of their rights. Employers should draft a shared parental leave policy which clearly explains the process. ACAS have produced a draft which can be used as a starting point and tailored to individual businesses. See: www.acas.org.uk/spl
When drafting a policy employers should consider whether to offer enhanced i.e. contractual pay for employees on shared parental leave in addition to the required statutory payment.
Employers will need to train managers to ensure that they understand the new rights and the process involved e.g. who is eligible to take SPL and the procedure to follow once a notice is received.
Employers will find that having early conversations with employees regarding leave intentions will be of benefit to both employer and staff.
The rules surrounding the SPL regime are complex and employers should take time to familiarise themselves with them. We will be producing more detailed guidance to SPL which will be accessible in the gated area of this website shortly.
ACAS good practice guide for employers and employees