With the right to give notice of intention to share parental leave fast approaching, Anna Beale unravels the complexities of the new shared parental leave legislation

Important new rights for parents to effectively share the mother’s maternity leave are due to come into force in respect of babies due on or after 5th April 2015. This may seem some way off at present, but employers should be aware that employees will be able to give notice of their intention to share parental leave in respect of such children from 1st December 2014, and rights not to be subjected to detriment for submitting such a notice will also come into force from that date. All employees and employers who may be affected should, therefore, be making themselves aware of the new rights now.

Unfortunately, the regulations setting out the detail of the new rights have not as yet been finalised. However, it seems likely that they will be similar (if not identical) in form to the draft regulations published on the Gov.UK website here. The enabling provisions for these regulations are contained in Part 7 of the Children and Families Act 2014, which inserts sections into the ERA 1996 and the Social Security Contributions and Benefits Act 1992. The information set out below is based on the draft regulations as they appeared on 30th September 2014.

A mother will qualify for Shared Parental Leave (SPL) if:

  1. she satisfies the continuity of employment test (namely that she has been continuously employed by her employer for a period of not less than 26 weeks by the end of the 15th week before the expected week of birth);
  2. she has the main responsibility for caring for the child, other than the responsibility of her partner;
  3. she is entitled to statutory maternity leave in respect of the child;
  4. she has ended any entitlement to statutory maternity leave by curtailing that leave in the appropriate way, or by returning to work;
  5. she has complied with the relevant notification and evidence requirements;
  6. her partner (P) (who must be either the father of the child, or the person who at the date of the child’s birth is married to, or the civil partner of, or the resident partner of the mother):
    1. has been working for at least 26 of the 66 weeks immediately preceding the expected week of birth (whether on an employed or self-employed basis); and
    2. has earned at least £30 per week on average in 13 of those 66 weeks;
  7. P has the main responsibility for the care of the child, other than that of the mother.

The father or partner will be entitled to shared parental leave if he/she complies with the tests set out at (a), (b) and (e) above, and if the mother of the child complies with the tests set out at (d), (f)(i) and (ii) and (g) above (suitably transposed to read “mother” instead of “P”), and is also entitled to any one of statutory maternity leave, statutory maternity pay or maternity allowance. This means that a partner may qualify for shared parental leave where the mother of the child is self-employed, and therefore does not herself qualify, and vice versa.

The amount of shared parental leave available will generally be 52 weeks minus the number of weeks of statutory maternity leave taken by the mother. It seems likely that the mother’s compulsory 2 weeks of leave (4 weeks if she works in a factory) will also be exempt, although this is not set out in the draft Regulations. The mother can either curtail her maternity leave using a curtailment notice (which means she would not have to return to work), or by returning to work without the need to submit a curtailment notice. The advantage of the curtailment notice is that it enables both parents to take leave at the same time, if they so wish. The leave must be taken within the first year of the child’s life.

SPL may be taken as one continuous period, or in discontinuous periods of at least one week. Where the request is for a continuous period of SPL, provided the employee complies with the relevant notice requirements (which, it should be noted, are complex and onerous), the employee has a right to take that period of leave. Where the request is for discontinuous periods of leave, the employer has the right to suggest alternative dates for the periods of leave, or to refuse to grant the periods of leave without proposing alternative dates. If no agreement can be reached on the discontinuous periods of leave, the employee is entitled to take the total amount of leave requested as a continuous period. The number of discontinuous periods of leave to which an employee is entitled under the statutory provisions is limited to three, although employers may agree to more periods of leave. If only one parent in a couple qualifies for SPL, he/she may still use it to book his/her leave in separate blocks, rather than having to take the leave all in a single block.

During SPL, an employee may work for up to 20 days without bringing the period of leave to an end. Similar provisions to those applicable during/after maternity leave apply in order to preserve the employee’s terms and conditions (other than those relating to remuneration) during SPL, to entitle the employee to be offered a suitable alternative vacancy where there is a redundancy situation, and to ensure a right to return to the same job (if the period of leave is 26 weeks or less), or, if the period is more than 26 weeks, to the same job, or, if not reasonably practicable, to a suitable and appropriate alternative.

Parents who take SPL will be entitled to statutory shared parental pay (‘ShPP’) as long as (in addition to meeting the requirements for taking SPL) both the parent seeking leave and his/her partner have average weekly earnings of not less than the lower earnings limit (assessed over an 8 week period ending with the 15th week before the expected week of birth). The rate of ShPP is the smaller of £138.18 or 90% of the normal weekly earnings of the individual claiming ShPP.

The two sets of draft regulations contain provisions entitling adopters to SPL and ShPP, which largely replicate the provisions relating to birth parents. The relevant date for the purposes of qualification for leave in the case of adoptive parents/partners, is the week of notification of matching for adoption. For the partner of an adopter to be able to take SPL, there is no requirement that he/she also be matched to the child for adoption.

The government also intends to produce secondary legislation to extend SPL and ShPP to intended recipient parents in surrogacy arrangements (where there will be a parental order) and employees who are fostering children with a view to adoption, although the draft regulations are not yet available.

By Anna Beale