Employment law - Shared parental leave

THE fifth of April of next year is an important date for some fathers wanting to take a greater role in the day-to-day care of their newborn children – and also for their partners. Parents with babies due on or after that date will be able to take advantage of the new Shared Parental Leave (SPL) scheme.

The new arrangement will allow parents to be more flexible with their childcare arrangements. Each parent will be able to request up to three separate blocks of leave to be taken between the birth of the baby and the child’s first birthday, or within one year of the adoption of a child. Intended parents in surrogacy who meet certain criteria will also be eligible. For any babies born on or after 5 April, additional paternity leave will stop although the right to take one or two weeks’ paternity leave within 56 days of the birth will continue.

In order to be able to take shared parental leave, the mother must give eight weeks’ notice that she is ending her maternity leave and that the remainder will be taken as shared parental leave. To qualify, the mother must share the care of the child with a husband, wife, civil partner or joint adopter. The scheme is not available for grandparents, uncles or aunts.

For example, if a mother and her partner are both eligible for SPL and the mother ends her maternity leave after 12 weeks, leaving 40 weeks of the total 52 week entitlement, she can take 30 weeks and her partner can take the other 10 weeks.

There will be a two-part process to establish eligibility for the new scheme. First, to qualify the parent seeking the leave has to be employed continuously for at least 26 weeks by the end of the 15th week before the due date and must be employed by the same employer during SPL. The partner must be working at least 26 of the 66 weeks before the baby is due – employed, self-employed or as an agency worker – and earn at least £30 a week on average in 13 of the 66 weeks.

Second, to qualify for shared parental pay, the parent must have passed the test above and have earned an average salary above the lower earnings threshold for the eight weeks prior to the 15th week before the baby is due. Shared parental pay will be at the lower rate of statutory maternity pay (SMP), which is currently £138.18 a week (or 90 per cent of average weekly earnings, whichever is lower). Unlike SMP, shared parental pay is not paid at the 90 per cent enhanced rate.

In notifying a practice of the intention to take shared leave, the employee should include details of:

• How much shared leave is available

• How much shared leave they are entitled to take

• How much they are intending to take

• How they expect to take it.

As advised before, three separate blocks of leave can be requested by giving the eight weeks’ notice and this can be requested as a continuous period of leave, which the employer cannot refuse, or a discontinuous period which can be refused. The mother and her partner can decide to take blocks of leave at the same or at different times. Once a request for leave has been received, the practice should consider:

• Is the request for one block of leave or for split blocks?

• What cover is going to be required?

• Will a discussion with the parent be beneficial at this time?

• Does there need to be any modification to a request for discontinuous leave?

If you decide you can accommodate split blocks of leave this can be agreed but the employee should take blocks of at least a week at a time, and not odd days.

An employee may be able to change their decision to end maternity leave early in certain circumstances if the planned leave end date hasn’t passed or they haven’t already returned to work.

The old regime of the mother being allowed to return to work for up to 10 KIT (keeping in touch) days will still stand, along with a new additional right for both parents on shared parental leave to work up to 20 SPLIT (shared parental leave in touch) days. Both KIT and SPLIT days remain optional and need to be agreed by both the employee and the employer.

Pregnant employees are allowed reasonable time off with pay for antenatal care. Under new regulations which came into effect in October partners of pregnant women are also entitled to unpaid time off to attend two ante-natal appointments for up to 6.5 hours. ACAS has also prepared detailed guidance on this new system. 

Liz Symon is an employment law adviser at MDDUS