The new system of shared parental leave (“SPL”) is due to come in to force on 1 December 2014 and will be effective for any children due or adopted on or after 5 April 2015. The below sets out a brief overview of the new provisions.
In summary, the new scheme will enable parents to share up to 50 weeks leave (the first two weeks following childbirth being compulsory leave for the mother), either consecutively or concurrently during the first year of their child’s life. In addition, the parents are able to take the leave in 3 separate blocks (of a minimum period of one week) – enabling them to return to work between periods of leave should they wish to do so. The aim of the legislation being to provide parents with more flexibility in deciding how to care for their child.
Parents will not be obliged to take shared parental leave and mothers will continue to be able to take the full 52 weeks of maternity leave (with 39 of those weeks paid) if that is preferable. Indeed, SPL only becomes available once the mother has given formal notice to end her period of maternity leave – enabling the remaining portion of her maternity leave to be available to both parents as SPL.
In order to qualify for SPL, parents must first satisfy certain eligibility criteria which include (among others): having been continuously employed for at least 26 weeks by the end of the 15th week before the due date; have provided the requisite notice of their intention to take SPL; and already having or be expecting to have main responsibility for caring for the child. In certain circumstances SPL can be available where only one parent is in employment provided the other meets certain ‘employment and earnings’ criteria.
In addition to satisfying the eligibility criteria, there are various prescriptive notice requirements with which parents my comply, including an end of maternity leave notice, a notice of entitlement and a period of leave notice which sets out the start and end date of the requested period of leave. It is possible for a mother to be on maternity leave and her partner commence SPL at the same time, provided the notice requirements reflect this intention and the mother has effectively curtailed her right to maternity leave.
The payment of statutory shared parental pay (“ShPP”), differs slightly from the current maternity provisions. The new legislation provides that up to 37 weeks of ShPP will be available to be shared between the parents at the lower of the statutory prescribed rate (which is currently £138.18 per week) or 90% of the relevant parent’s normal weekly earnings. The remaining 13 weeks of SPL are unpaid. Unlike maternity leave there is no requirement for the first 6 weeks to be paid at 90% of the parents’ actual weekly earnings – rather the level of payment is set at a minimal level. However, if an employer were to differentiate between maternity and SPL and offered enhanced payment for maternity leave but not for SPL, this could potentially amount to discriminatory treatment because of sex and further advice should therefore be sought.
Employees taking SPL will also be entitled not to be subjected to a detriment or dismissal for proposing to take or having taken SPL and will also benefit from enhanced protection in redundancy situations – giving them priority over other employees at risk, as is the current position with maternity leave.
In addition where an employee returns from SPL having taken 26 weeks’ leave or less (irrespective of whether such leave was taken continuously or not) that employee is entitled to return to the same job on the same terms and conditions as they enjoyed prior to taking the leave. Where, however, an employee takes in excess of 26 weeks’ SPL, the employee’s right to return is qualified (as is currently the position for mothers who have taken additional maternity leave) entitling the employee to return to the same job or, where not practicable, to another job which is both suitable and appropriate for them in the circumstances.
The above is a very brief summary and overview of the new law. If you have any questions on the above or would like some further detail regarding the new legislation or a revision of your applicable policies, please do not hesitate to contact Matt Huddleson or Sarah Luxmoore.