New laws have come in, which give parents the right to share childcare responsibilities. This is known as Shared Parental Leave (SPL). To trigger rights under this scheme a mother can either end her Maternity Leave (ML), tell her employer the date that she will end her ML or end her maternity pay or allowance. Then the mother can share up to 50 weeks’ leave and 37 weeks’ pay with their partner. In practice this means the partner can access SPL while the mother is on ML or after it has ended and the Mother can access SPL after maternity leave has ended. Mothers cannot return to work or change to SPL until the compulsory maternity leave period (usually two weeks) is completed.
An employee has the right to be able to give at least three notices to their employer requesting a period of leave. Such leave can be requested in two ways. The first is a request for continuous SPL such as asking for a month off. A request for a continuous period of leave cannot be refused provided 8 weeks’ notice is given. Given employees can mix work and leave in a pattern of their choosing, this may cause considerable resource issues.
To complicate matters further the employee can request ‘discontinuous’ SPL with periods on and off work; this may be, for example, a request for one week at work and one week off over a 12 week period. This would presumably be in a situation where the mother and partner each want to continue working during the whole period whilst sharing the responsibility of childcare. Employers can, however, refuse these discontinuous blocks.
It should also be noted that employees requesting SPL have the right not to be treated badly at work as a result of making such a request.
Eligibility for this scheme is as follows: -
- The baby’s Expected Week of Childbirth (EWC) must be on or after 05.04.15, although it does not matter when the child is actually born;
- The mother needs to shorten her maternity leave and share the balance with one person. It can be the baby’s father or a person with whom the mother is an enduring family relationship, but it cannot be the baby’s grandparent or other relatives such as a sibling, uncle or aunt;
- Both partners must have been employed or self employed in the UK for 26 weeks in the 66 weeks before the EWC and earned an average of £30 a week in 13 weeks;
- Employees must be employed the week before taking SPL, have worked for the employer for at least 26 weeks 14 weeks before the EWC and share responsibility for the baby while taking SPL;
- There is also a right to Statutory Shared Parental Pay (ShPP). Employees must have earnt the lower earnings limit, currently £111 per week normally in the 8 weeks prior to the 14th week before the EWC.
Further details of the nuts and bolts of the scheme can be found at https://www.gov.uk/shared-parental-leave-and-pay-employer-guide/overview
Employers and employees should be alive to various legal and practical issues that may arise as a result of this scheme. Mothers will probably not end their maternity leave until after the first six weeks given the enhanced pay (i.e. 90% of salary rather than the usually lower statutory right). Partners are also likely to take paternity leave before SPL so as to avoid losing their right to take paternity leave.
Moreover, if the mother’s employer does not enhance her maternity pay or ShPP over and above the statutory minimum and her partner’s employer does, employers may find that the mother chooses to end her maternity leave so as to enable her partner to take SPL on a higher level of pay. This may, in turn, lead employers to consider paying ShPP at a lower rate than maternity pay so as to ensure their male employees are not tempted to take ShPP for the reasons outlined above. This may amount to unlawful discrimination.
It would be highly advisable for employers to consider drawing up new policies or refreshing their existing ones to ensure a consistent, lawful and productive approach.
This article was written on 29.01.15 and was accurate, to the best of the writer’s knowledge, at that date. Given the word limit, this article is not intended to be a comprehensive overview of the new scheme and should not be relied upon as legal advice. It is merely to highlight some of the key aspects of the new scheme and to suggest that employees and employers put their mind to its implications. If in doubt legal advice should be taken.