When does SPL come into force?
The new statutory provisions are due to come into force on 1 December 2014 and the scheme for SPL will apply in relation to children:
• Whose expected week of childbirth (EWC) begins on or after 5 April 2015
• Who are placed for adoption on or after 5 April 2015
To qualify for Shared Parental Leave and Pay a mother must be entitled to maternity or adoption leave, or statutory maternity or adoption pay or maternity allowance and must share the main responsibility for caring for the child with the child's father or her partner. In addition, they will be required to follow a two-step process to establish eligibility.
Step 1 - Continuity test
A parent seeking to take Shared Parental Leave must have worked for the same employer for at least 26 weeks at the end of the 15th week before the week in which the child is due (or at the week in which an adopter was notified of having been matched with a child or adoption) and is still employed in the first week that Shared Parental Leave is to be taken.
The other parent must have worked for 26 weeks in the 66 weeks leading up to the due date and have earned above the maternity allowance threshold of £30 a week in 13 of the 66 weeks.
Step 2 - Individual eligibility for pay
To qualify for SSPP the parent must, as well as passing the continuity test, also have earned an average salary of the lower earnings limit or more (currently £111) for the 8 weeks' prior to the 15th week before the EWC.
Shared Parental Leave may be taken at any time within the period which begins on the date the child is born or date of the placement and ends 52 weeks after that date. Leave must be taken in complete weeks and may be taken either in a continuous period, which an employer cannot refuse or in a discontinuous period, which the employer can refuse.
A mother can share the leave with their partner if they’re also eligible for SPL, and choose how much of the leave each of you will take.
A mother and her partner are both eligible for SPL. The mother ends her maternity leave after 12 weeks, leaving 40 weeks (of the total 52 week entitlement) available for SPL. She takes 30 weeks and her partner takes the other 10 weeks.
SPL also lets you suggest a flexible pattern of leave to your employer. An eligible employee can book up to 3 separate blocks of Shared Parental Leave (SPL) instead of taking it all in one go, even if they aren’t sharing the leave with their partner. If their partner is eligible for SPL, they can take leave at different times - or both at the same time. They must give their employer at least 8 weeks’ notice before you want to begin a block of leave. If the employer agrees, a parent can split blocks into shorter periods of at least a week.
A mother finishes her maternity leave at the end of October and takes the rest of her leave as SPL. She shares it with her partner, who’s also eligible. They each take the whole of November as their first blocks of SPL. The partner then returns to work. The mother also returns to work in December to cover the busy Christmas period. She gives her employer notice that she’ll go on leave again in February - this is her second block of SPL. Her employer agrees to a work pattern of 2 weeks on, 2 weeks off during the block.
Sometimes only one parent in a couple is eligible to get Shared Parental Leave (SPL) and Statutory Shared Parental Pay (SSPP). This means that they can’t share the leave between them. If eligible then they can use SPL to book leave in separate blocks even if their partner can’t share it.
To qualify for Shared Parental Leave (SPL), an employee must share care of the child with either:
• their husband, wife, civil partner or joint adopter
• the child’s other parent
• their partner (if they live with you and the child)
The employee or their partner must be eligible for SMP, SML or MA or adoption pay and/or leave.
So, where a mother is an employee but the father is self-employed, or unemployed having recently lost his job, the father will not technically qualify for SPL or SSPP as he has no employer. However, because the father has been economically active, the mother is not restricted to taking maternity leave; she will be able to access the more flexible SPL scheme. This means she will be able to take part of her maternity leave, go back to work, and then take a further period or periods of SPL at a later date, up to 52 weeks after birth.
Alternatively, where a father is an employee, but the mother is self-employed or recently unemployed, the mother has no maternity leave or SPL entitlement herself, but will qualify for maternity allowance. By curtailing her entitlement to maternity allowance, the mother will be able to give the father access to the SPL scheme, meaning he can take a period or periods of SPL.
How much pay will they get?
SSPP is paid at the rate of £138.18 a week or 90% of their average weekly earnings, whichever is lower. This is the same as Statutory Maternity Pay (SMP) except that during the first 6 weeks SMP is paid at 90% of whatever the mother earns (with no maximum).
A woman decides to start her maternity leave 11 weeks before the due date and gives notice that she’ll take SPL from 2 weeks after the birth (taking a total of 13 weeks maternity leave). She normally earns £200 a week. She’s paid £180 (90% of her average weekly earnings) as SMP for the first 6 weeks, then £138.18 a week for the next 7 weeks. Once she goes onto SPL, she’s still paid £138.18 a week.
Activating Shared Parental Leave
An employee or their partner can only start SPL once the child has been born or adopted. The mother or adopter must have either:
• ended any maternity or adoption leave by returning to work
• given ‘binding notice’ to their employer of the date when they plan to end any maternity or adoption leave
• ended maternity pay or Maternity Allowance (if they’re not entitled to maternity leave, eg they’re an agency worker or self-employed)
The mother or adopter must give notice to their employer (at least 8 weeks) to end maternity or adoption pay, or to Jobcentre Plus to end Maternity Allowance. A parent can start SPL while their partner is still on maternity or adoption leave as long as they’ve given binding notice to end it. A mother can’t return to work before the end of the compulsory 2 weeks of maternity leave following the birth.
A mother and her partner are both eligible for SPL. The mother goes on maternity leave 10 weeks before her baby is born. She decides that she’ll take 16 weeks of maternity leave and gives notice to her employer. Since the mother has given binding notice, her partner can start SPL as soon as the baby has been born (as long as they’ve given at least 8 weeks’ notice).
Identifying how much SPL is available to each parent
Both parents must agree between them the amount of SPL each of them will take. Neither parent can take SPL unless the other has signed a declaration giving their consent to the division of leave as set out in the notice of entitlement and intention to take SPL.
When parents want to share SPL between them, they will need to calculate the amount of available leave by starting with 52 weeks and deducting the amount of the statutory maternity leave period or the amount of her statutory maternity pay or maternity allowance period that M has taken (or will take) before she either returns to work or curtails her entitlement.
1. Return to work or curtail leave or pay entitlement
First, for parents to participate in the SPL scheme, the mother or primary adopter must either return to work or curtail their maternity or adoption leave or, where they are not entitled to leave, curtail their maternity or adoption pay or maternity allowance period.
A curtailment notice must be given at least 8 weeks before the date on which the mother or primary adopter wishes their leave or pay entitlement to end, which cannot be before the end of the compulsory maternity leave period or two weeks after the start of the adoption leave or pay period. At the same time as serving a curtailment notice, the mother or primary adopter must serve either a notice of entitlement and intention to take SPL (see below), or a declaration that their partner has served such a notice.
2. Notice of entitlement and intention to take SPL
A parent who wishes to "opt in" to the SPL scheme and who is an employee will need to give their employer a notice of entitlement and intention to take SPL. This is a non-binding indication of how and when a parent intends to take periods of SPL, including the start and end dates for each period of leave. It needs to be given at least eight weeks before the start of the first proposed period of SPL and include a declaration by the other parent taking SPL consenting to the proposal.
3. Evidence that an employer may request
An employer that receives a notice of entitlement and intention to take SPL has 14 days in which they may request:
• a copy of the child's birth certificate or documents notifying the primary adopter that the child was to be placed with them; and
• the name and address of the other parent's employer.
The parent has 14 days to provide their employer with a copy of the birth certificate, or if the birth certificate has not yet been issued, a signed declaration is acceptable which confirms the child’s date and place of birth and confirmation that a birth certificate has not yet been issued.
If the employer makes a request for the name and address of the other partner’s employer, the parent has 14 days to provide the name and address or a declaration that they do not have an employer.
4. Period of leave notice
An employee must request SPL at least eight weeks before the first start date by giving their employer a leave notice. A notice that requests one continuous period of SPL must be accepted but where a notice requests discontinous periods, the employer has two weeks to accept the request, propose alternatives or refuse it. Where the employer refuses the periods requested, the employee may choose to take the total amount of leave requested as a continuous period or has until the 15th day after their period of leave notice was given to withdraw their original notice.
An employee may serve up to three notices, including variation notices. If an employee has more than one employer, then the limit applies to each employer. The limit of 3 notices can however be waived by agreement between the employee and the employer. If the child is born more than 8 weeks early, this notice period can be shorter.
Reasonable contact and up to 20 days work during SPL
The employer and absent employee are entitled to make reasonable contact with each other from time to time during a period of SPL, for example, to discuss an employee's return to work, without bringing the period of leave to an end.
An employee may work for up to 20 days during the SPL period for each of their employers without bringing their leave to an end. These days are referred to as "shared parental leave in touch" (SPLIT) days. These are separate and additional to any KIT days that a woman has on maternity leave.
For these purposes:
• Any work carried out on any day constitutes a day's work
• Work means any work done under the employee's contract of employment and may include training or any activity undertaken for the purposes of keeping in touch with the workplace
An employer cannot require an employee to attend work, nor can an employee insist on attending work during a period of SPL. Doing a day's work under these provisions does not have the effect of extending the length of a period of SPL.
Right to return to work
• Right to return to the same job - for employees returning from any period of maternity, paternity or adoption leave, or SPL
• Right to return to the same or a similar job – for employees returning after over 26 weeks’ leave
Discussing a notification for Shared Parental Leave
Having an early and informal discussion can provide an opportunity for both the employee and employer to talk about their preference regarding when Shared Parental Leave is taken. Employers can use this discussion as an opportunity to point out the different options such as maternity, paternity leave (or adoption leave), and can ensure the employee is aware of their statutory rights or any contractual schemes the employer has in place. It can also be an opportunity to discuss when any discontinuous leave can be best accommodated.
Once a notification for a period of leave has been received an employer may wish to consider:
• Is the request for leave one continuous block or discontinuous blocks?
• What cover will be needed for the employee's absence?
• Will a discussion with the employee be beneficial at this time?
• Is any modification to a discontinuous leave request necessary?
Depending on the circumstances involved, there are four outcomes available to an employer once they have received, considered and discussed a Shared Parental Leave notification. It is important to note an employer cannot refuse a notification for continuous leave.
1) A continuous leave notification must be unconditionally accepted
2) Whilst the employee is under no obligation to modify a continuous leave notification, and should never be put under pressure to do so, an employer may attempt to seek an agreed modification to a continuous leave request
3) A discontinuous leave notification can be refused
4) Whilst it is not good practice and should be avoided, it is possible for an employer to make no response to a leave notification
For outcomes 3 and 4 above, the employee can withdraw their notification on or before the 15th day after the notification was originally made and it will not count as one of their three notifications. If not, they must take the total amount of leave notified in one continuous block. The employee can choose when this leave period will begin within 19 days of the date the notification was given to the employer but it cannot start sooner than the initial notified start date. If they don't, the leave will begin on the starting date stated in the original notification.
• Eligible parents can take up to 52 weeks’ SPL:
- First 2 weeks are compulsory maternity leave
-Remaining 50 weeks are available for sharing
• Leave can be taken consecutively or concurrently – but the total time taken by both parents cannot exceed 52 weeks
• Leave can be taken in a minimum of one week blocks (part of a week is treated as a whole week)
• Cut-off point for taking SPL is 52 weeks from birth/adoption
• Default position for mothers: 52 weeks’ maternity leave and 39 weeks’ pay
• Fathers will still be entitled to 2 weeks’ ordinary paternity leave (unless they have already taken SPL)
• Notice to take SPL is binding unless:
- Parent discovers they do not qualify for SPL
- Mother gave notice before birth of child – she can change her mind up to 6 weeks after the birth
• Parents must agree the timing and periods of leave with their employer o If they cannot agree, it will default to a single block of leave, to commence on a date specified by the employee, or the employee can withdraw the request
• Each parent can make a maximum of 3 notifications for leave, or changes to periods of leave – but the employer and employee can mutually agree additional changes
• Employees must provide a non-binding indication of their expected pattern of leave 8 weeks before the start date of the first period of SPL
Pam Loch, Managing Partner of niche employment law practice Loch Associates Employment Lawyers, and Managing Director of HR Advise Me Limited.