Shared parental leave

New rules on shared parental leave raise some tricky issues in practice that employers need to understand.

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What are the basics of shared parental leave?

Shared parental leave (SPL) allows parents of a child born after 4 April 2015 more flexibility to share time off work to care for their child during its first year of life. SPL is not to be confused with parental leave, which will continue to be available to parents who qualify, as will maternity leave, ordinary paternity leave (not additional paternity leave) and adoption leave. Adoptive parents have the same rights to SPL and shared parental pay (ShPP).

Who qualifies for SPL?

To qualify for SPL the child's mother must have the right to maternity leave or statutory maternity pay or maternity allowance or statutory adoption leave or pay and she must cut short her right, so the rest of her entitlement can be taken as SPL and ShPP. An employee must have worked for the same employer for at least 26 weeks at the end of the 15th week before the week their child is due and still be working for the employer when they start SPL. The employee’s partner must also have worked for their employer for at least that amount of time before they start SPL. The mother and her partner must have worked for at least 26 weeks in the 66 weeks before the due date and have earned more than the maternity allowance level in 13 of the 66 weeks.

How does SPL work?

A mother can reduce her right to maternity leave by returning to work before her full 52 week maternity entitlement has been taken, or by giving notice that her leave will end on a set future date, so the mother's partner can take leave while the mother is still on maternity leave and/or receiving maternity pay.

The mother must take at least the first two weeks after childbirth off work (four weeks if she works in a factory), but SPL can start any time after that. SPL can only be taken in the first year following the child's birth; any leave not taken in the first year is lost. During SPL each parent can use up to 20 SPL in touch days to go into work without ending SPL.

SPL must be taken in weekly blocks and can be taken in a single block or in separate blocks if agreed by the employer (if this is not agreed, the employer can ask the employee to take a single block on the employee's preferred dates). An employee can make at least three requests to book or vary SPL but must notify their employer of their right and book the leave with at least eight weeks’ notice.

Shared parental pay

ShPP is available if an employee meets all the eligibility criteria. A mother (including an adoptive or surrogate mother with parental responsibility for the child) must be entitled to 39 weeks of Statutory Maternity Pay (SMP), Statutory Adoption Pay (SAP) or Maternity Allowance (MA) and must reduce the number of weeks she is paid SMP, SAP or MA. This means the maximum ShPP a father or partner of the mother can take is 37 weeks while taking SPL. ShPP is the lower of 90% of an employee's pay and the minimum rate set by the Government each tax year (£148.18 a week as of 1st April 2018). An employee will only qualify for ShPP if he or she qualifies for SPL.

Returning to work

An employee has the right to return to the same job if they take 26 weeks or less SPL, maternity, paternity, adoption and/or parental leave in total. If the employee takes more than 26 weeks of leave they will have the right to return to the same job, or if not reasonably practicable, a similar and suitable job.

What relationship must the employee have with the child?

Only employees with parental responsibility can take SPL. This means they must be the child's biological parent (whether or not living with the child) and expect to have some responsibility for its upbringing. Alternatively, they should be a surrogate parent, the child’s adoptive parent or the spouse, or partner of the child's mother or adopter and expect to have main (shared) responsibility for its upbringing.

Tricky shared parental leave issues

The employer may find it useful to introduce a shared parental leave policy, as there are some difficult areas and a clear process will assist both employers and employees in making this easier to deal with.

If a mother changes her mind about reducing her maternity leave to share parental leave, this is allowed, but will have implications for her partner's leave and you should Ask a lawyer if you are unsure about this.

Holiday accrues during SPL. It is risky to prevent employees carrying forward accrued holiday if the holiday year-end falls during their SPL, as the law is unclear on this matter.

If you cannot agree the timing of SPL with an employee and need further advice on how to handle this situation, or you agree to your employee’s leave request but the other parent's employer does not, Ask a lawyer.

An employee is protected from detriment and from unfair dismissal connected with the taking of SPL. If an employee is made redundant whilst on SPL, he or she is entitled to be offered a suitable alternative vacancy if one arises. Also, if an employee has taken more than 26 weeks SPL and it is not reasonably practicable for them to return to the same job, they should be offered a suitable alternative. In both of these cases, Ask a lawyer about what represents a suitable alternative job for that employee and how to practically deal with the situation.

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Create a Shared parental leave policy

Answer a few questions. We'll take care of the rest