Shared Parental Leave: Frequently Asked Questions
Since 5th April 2015, 50 weeks of statutory maternity leave can be converted to shared parental leave (SPL) and shared with the mother’s partner.
It is the mother’s choice whether to take the full 50 weeks’ maternity leave, as well as 2 week’s compulsory leave after the birth or convert it into SPL. However if either partner takes SPL, both of them need to agree how this is taken. There is no extra entitlement to leave or pay.
Within this article we refer to mothers for ease of reference, but almost identical provisions apply to adopters.
Frequently Asked Questions
Q. Are all employees entitled to SPL
A. Unlike maternity leave (where there is no qualifying period), an employee can only take SPL if they satisfy the continuity of employment test. In addition their partner must satisfy the employment earnings test.
In order to satisfy the continuity test, the employee must have worked for the same employer for 26 weeks at the end of the 15th week before the expected week of childbirth and remain employed until the week before the start of SPL. To satisfy the employment earnings test, the partner must have worked on an employed or self-employed basis in 26 weeks of the last 66 weeks immediately before the expected week of childbirth, earning at least £30 per week on average for 13 of those weeks.
Q. What information does an employee need to provide if they intend on taking SPL?
A. An employee wishing to take SPL will firstly need to serve notice of their entitlement and intention to take SPL. This is a non-binding indication of how and when the employee intends to take periods of SPL including the start and end dates for each period of leave. The notice needs to be given at least 8 weeks before the start of the first proposed period of SPL and include a declaration by their partner taking SPL confirming their agreement to the proposal.
Q. Does an employer need to check an employee's eligibility for SPL?
A. It is the employee’s responsibility to check that they are eligible for SPL and shared parental pay (ShPP) and an employer should grant leave and pay based on the information and declarations provided by the employee. If it is subsequently discovered that ShPP was incorrectly paid, an employer should correct their records and may recover wrongly paid ShPP as an overpayment of wages.
Q. Can an employer request any additional information from an employee?
An employer can within 14 calendar days of receiving the notice, request a copy of the child’s birth certificate (if one is available). They can also request the contact details for the employee’s partner’s employer. If a request is made then these details must be provided within 14 calendar days. If an employer intends to contact the other employer, they should ensure that any actions are consistent with their policies and consider their data protection obligations and duty of confidentiality.
Q. How does an employee finalise a request for leave?
A. Although an employee will have given notice of their intention and entitlement to SPL, an employee must finalise their requested period of SPL by, at least 8 weeks before the first start date, giving the employer a period of leave notice. An employee may serve up to 3 notices.
Q. How can SPL be taken?
A. SPL can be taken as one continuous block of leave or it can be taken in discontinuous blocks, with the employee working in between.
Q. Does an employer have to accept requests for discontinuous blocks of leave?
A. Employers can reject a request for discontinuous leave. An employer has 2 weeks to consent to the periods of leave requested, propose alternative dates or refuse the leave. Where no agreement is reached the employee is entitled to take a continuous period of leave, choosing a start date, or withdraw the notice requesting discontinuous leave. Alternatively an employee can serve 3 separate notices, each one specifying a period of SPL to be taken (in multiples of a week) which the employer cannot refuse as each notice is a request for one continuous period of leave. If both parents request discontinuous leave in one notice and one (or both) employers refuse this, they can both withdraw the request and serve 3 separate notices which could be for the same periods of leave. However if one employer accepts and the parent subsequently has to change the leave, the notice which was accepted and the notice of variation will count as 2 of their 3 notices.
Q. Can a mother and her partner take leave at the same time?
A. SPL is more flexible than maternity leave. The mother can remain on maternity leave at the same time as her partner is on SPL, provided that the mother has first curtailed her maternity leave and her partner has given the required 8 weeks’ notice to take SPL. Thus the mother could remain on 25 weeks’ maternity leave and her partner could take at the same time 25 weeks’ SPL.
Q. What effect does paternity leave have on SPL?
A. Although the overall SPL entitlement is reduced for each week the mother spends on maternity leave, the same cannot be said for the father’s entitlement to ordinary paternity leave (and pay), which is entirely separate. So if you include maternity leave, paternity leave and shared parental leave, the total amount of leave available to the couple is 54 weeks, of which two ( compulsory maternity leave) are reserved to the mother and two (ordinary paternity leave) are reserved for the father (or mother’s partner).
Q. How much is Shared Parental Pay?
A. ShPP is paid at a flat rate of £139.58 (or 90% of earnings whichever is lower) for 39 weeks, less any weeks that the mother has taken as statutory maternity leave. As the first 2 weeks of maternity leave are compulsory, the actual maximum number of weeks available to be paid is 37. This can be contrasted with statutory maternity pay which is paid at 90% of earnings for the first 6 weeks and then at the flat rate of £139.58 (or 90% of earnings whichever is lower) for 33 weeks .
Q. Does offering enhanced maternity pay discriminate directly against men if there was no enhanced ShPP?
A. There has been much discussion about whether companies with enhanced maternity packages are obliged to match those benefits for anyone taking SPL. There is no statutory requirement for employers to provide such enhancement and the government considers that there is no need for employers to do so. However this leaves open the question: if an employer enhances maternity pay, would this discriminate directly against men if it failed to similarly enhance ShPP?
In terms of direct discrimination, since both men and women can take SPL, arguments based on direct discrimination seem unlikely to succeed because the employer can argue that the correct comparator for a man on SPL is not a woman on maternity leave but a woman on SPL. Provided men and women taking SPL are treated in the same way for pay purposes, no claim for direct discrimination would arise.
However the position may not be so clear cut. As men can take SPL from the birth of their baby, the position of men on SPL and women on maternity leave is more similar now than has been the case previously. This potentially paves the way for men to compare themselves with a new mother receiving enhanced maternity pay and to claim direct discrimination where they do not receive correspondingly enhanced pay during SPL.
Even if direct discrimination claims don’t succeed, the risk of indirect discrimination claims remains. If an employer pays enhanced pay only to women on maternity leave, that is a provision, criterion or practice with which all men cannot comply, and is therefore on the face of it indirectly discriminatory unless it can be shown that the enhanced maternity leave was a proportionate means of achieving a legitimate aim, e.g if the aim of paying full pay to women on maternity leave was to recruit and retain women in a male-dominated workforce. This aim may not necessarily be applicable to all employers therefore employers will need to carefully consider their motives for paying enhanced maternity pay and not enhanced shared parental pay, remembering that cost alone is insufficient to provide justification.
Q. What happens to an employment relationship during periods of SPL?
A. As currently happens during statutory maternity, paternity and adoption leave, an employee taking SPL will be entitled to the benefit of the terms and conditions of employment which would have applied had they not been absent, except for terms as to remuneration.
Q. How much contact can an employer have with an employee who is on SPL?
A. 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 to and additional to any keeping in touch days that a woman on maternity leave has.
There is no obligation on an employer to offer these days or for an employee to agree to them. Both parties should be clear about how much an employee will be paid for working a SPLIT day and whether the contractual pay will top up ShPP to fill pay or whether the contractual pay will be additional to the week’s ShPP.
Q. What rights does an employee have when returning to work after a period of SPL?
A. An employee’s rights on return to work after taking SPL will depend on how much SPL they have taken, either on its own or in conjunction with any period of maternity, paternity or adoption leave. While the employee’s primary right is to return to the job in which they were employed before their absence, in certain circumstances that right becomes a right to return to another job which is both suitable for them and appropriate for them to do in the circumstances.
Where an employee returns to work after 26 weeks or less, the employee is entitled to return to the job in which they were employed before their absence.
Where an employee returns to work after 26 weeks or more, the employee is entitled to return to the same job in which they were employed before their absence unless it is not reasonably practicable for their employer to return them to that job, in which case they will be entitled to return to another job which is both suitable and appropriate in the circumstances.
If you have any questions on any of the points raised in this article, contact our HR/ employment solicitor Claire Berry on 01480 442040 or email firstname.lastname@example.org