I am sure every man and his child knows about the new Regulations that came into force from December 2014 in relation to Shared Parental Leave (if not, where have you been?). However, do you know how they will work in reality and what effect this could have on your business?

In this article I briefly explain the Shared Parental Leave (SPL) Regulations and offer some practical tips for employers in dealing with SPL requests. 

What is SPL?

Shared Parental Leave (SPL) is designed to allow parents to share the caring responsibility of their child.  It only applies where the expected week of childbirth begins on or after 5^th April 2015 or where the child is placed for adoption on or after this date. The leave is to be taken in the first year of the child’s birth/adoption.

Currently, a mother or primary adopter is able to take 52 weeks maternity or adoptive leave. Under the new scheme, if they wish to end their leave early, both parents are able to share the remaining weeks of leave as SPL.

It is simple if the mother or primary adopter does not end their leave early, the other parent has no entitled to SPL and  the other parent will only be entitled to two weeks ordinary parental leave.

Who is eligible?

As with many rights given to employees, there are certain tests that the employee has to meet in order to be eligible. These are:

1.BIRTHS: the mother must be entitled to statutory maternity leave, statutory maternity pay or maternity allowance and the mother must end her right to these for both parents to be able to utilise SPL;

2.ADOPTIONS: the primary adopter must be entitled to statutory adoption leave or statutory adoption pay and the primary adopter must end their right to these for both parents to be able to utilise SPL.

In addition to the above, an employee wishing to take SPL must:

• Have been employed continuously for 26 weeks before the 15^th week of the EWC and remain in employment one week before the SPL is to be taken;
• Be one of the two main carers of the child;
• Their partner must have worked for 26 weeks out of 66 weeks (this can include being self-employed – more on this below) and have minimum earnings as set by government (currently £30 per week).

Here is a quick example – Martin has been employed for 18 months. Martin’s partner is entitled to maternity allowance. However, Martin’s partner has only worked for 15 weeks out of 66 weeks. Martin will therefore not be entitled to any SPL.

How much SPL and how it can be taken?

The first step is to calculate how much maternity leave the mother or primary adopter has taken before a notice to end that leave is issued. This is then deducted from the total 50 weeks of leave available (remember the first two weeks of maternity leave are compulsory). This will give you the amount of SPL available for the parents to share.

Here is a quick example – Sarah has taken 12 weeks maternity leave (including two weeks compulsory) and informs her employer that she wishes to end her maternity leave. Sarah and her partner are able to share the remaining 40 weeks leave as SPL. 

Those eligible for SPL can take leave in three blocks of a minimum of one week per block. The block may be continuous or discontinuous but must be complete weeks. If the block of leave is continuous an employer has to accept it, subject to the employee following the process below. If the block of leave is discontinuous (i.e. one week off, two weeks at work, one week off, two weeks at work) the employer must consider the request but has no obligation to accept it.

The Regulations allow for both parents to be absent at the same time. This can either be because they are taking SPL together, the mother is taking SPL whilst the father is taking paternity leave or the mother is still on maternity leave but has given notice to end it and the father takes SPL. 

What is the Process?

If the mother/primary adopter does wish to end their maternity leave early then they must put this in writing to the employer. Once this notice has been given, or the mother has returned to work, both parents can submit a notice to take SPL. The notice must be made at last eight weeks before the first block of leave and contain the following:

1.Statutory Maternity Leave start date and end dates;

2.The amount of SPL available;

3.The amount of SPL the employee is intending to take;

4.How the employee intends to take the SPL;

5.A declaration signed by both parents.

If the employee has made a request for a block of discontinuous leave, the employer and employee have a 14 day consultation period to discuss the request. During this period the employer can suggest other arrangements. If the request is not granted the employee must withdraw their notice or the leave becomes a block of continuous leave.

Remember a request to take a continuous block of SPL cannot be refused.

Shared Parental Pay?

Generally speaking anyone entitled to SPL will be entitled to Shared Parental Pay (ShPP). If the employee and their partner are entitled to ShPP then they can decide who will be paid the ShPP for any SPL taken. 

Self-Employed

For those who engage staff on a self-employed basis,whilst the right to SPL is for employees only, if the employee’s partner is self-employed this may not affect the employee’s entitlement to SPL.

The eligibility test is that the employee’s partner has worked for 26 weeks out of 66 and has minimum earnings of £30 per week. It makes no reference to the employee’s partner also being an employee.

Therefore if you have an employee whose partner is self-employer, as long as the partner meets the above test, the employee will be entitled to SPL.

Practical Points for Employers

Firstly, having a good policy in place will assist both you and your employees in knowing what the procedures are. As an employer you can refer to this to ensure the correct legal requirements are being met.

Secondly, if an employee notifies you that they or their partner are pregnant, this would be a good opportunity to discuss with them their intentions in relation to SPL. Legally employees are only required to give you eight weeks’ notice of their intention to take SPL but early discussions can give you an idea of whether the employee does intend to take SPL and so you can plan for this possibility in the future. The advantage to the employee is that if they want to request discontinuous leave, you may be more inclined to accept this if you have time to plan cover.

Thirdly, if an employee does make a request for discontinuous leave, you have 14 days to consult with them about this. You can suggest alternative arrangements if the pattern they are requesting does not work for you. If an alternative is agreed put this in writing.

Fourthly, employers can offer enhanced ShPP. If your current maternity pay policy is to offer statutory pay only, then this should be reflected in the ShPP policy. However, if you offer enhanced maternity pay, you need to consider carefully whether you want to also offer enhanced ShPP. If you are going to match enhanced ShPP to your enhanced maternity pay you need not worry further and simply reflect this in the SPL policy. If you are not intending to match the pay, then you need to make clear notes and keep a record of any decisions made, as if an employee looks to bring an indirect sex discrimination claim due to difference in treatment, the notes will be important evidence to defend a claim. Please note that cost alone as the reason for not offering enhanced pay will not be sufficient to help you defend such a claim. You would need other grounds to justify the treatment such as staffing needs.  

This is a basic guide to the SPL Regulations and does not contain every provision or unusually circumstance. More information can be found here.

If you need to update your Staff Handbook to include a policy on SPL or you have any questions in relation to SPL then please contact me on 020 7388 1658 or email me at lpearce@jfhlaw.co.uk.