Understanding Shared Parental Leave

Shared Parental Leave was introduced in December 2014 making the legislation a decade old. Has it revolutionised family leave? Probably not. Has it become the topic everyone fears? Maybe.

We thought it would be a good time to review what the law in this area means and how to apply it. SPL is perhaps one of the most complicated aspects of employment law. We set out below how it works in practice, breaking it down into bite-size pieces.

1. What is Shared Parental Leave (SPL)?

Shared Parental Leave (SPL) allows new parents the flexibility to decide how to care for their child in the first year after birth or adoption. SPL can allow both parents to take leave at the same time as one another, or to alternate between who is caring for the child and who is working. In essence, it allows one parent to “share” the leave entitlement that would, previously, have only been available to the mother/ primary adopter.

What do we mean by this? Well, a mother (or primary adopter) is currently entitled to 52 weeks of maternity (or adoption) leave.

SPL would then allow the mother (or primary adopter) to bring that maternity (or adoption) leave to an end and share what would have been the remainder of the maternity/adoption leave with the child’s father (or the mother’s husband or civil partner or partner). In cases of adoption, the secondary adopter (the “other parent”) is entitled to the remainder of that leave.

There are some technical meanings as to who is eligible and, for SPL “parents” are, in birth cases, the child’s mother and the child’s father, or the person who at the date of birth is the mother’s spouse, civil partner or partner.

In adoption cases “parents” are the person with whom the child is expected to be placed and that person’s spouse, civil partner or partner.

By law, a new mother must still take her two weeks of compulsory maternity leave (four weeks while working in a factory) and the primary adopter must similarly take two weeks’ adoption leave. This means that the maximum amount of leave available is 50 weeks.

It is often overlooked that staff can work up to 20 days whilst taking SPL- these are called ‘Shared Parental Leave in touch’ (or SPLIT) days.

2. Who is eligible?

If both the mother/primary adopter and the other parent wish to take SPL, then they both must meet certain requirements. The parent wishing to take SPL must:

• Have been working with their employer for a continuous period of 26 weeks, by the end of the 15th week before the expected week of childbirth;
• Have the main responsibility for the care of the child (apart from the other parent);
• Have served the requisite notices on their employer; and
• Have provided their employer with any necessary evidence, at their employer’s request.

The following minimum earnings and employment requirements must also be satisfied by the other parent if the mother/primary adopter wishes to take SPL- and by the mother or primary adopter if the other parent wishes to take SPL:

• They must have been engaged in employment with their employer, or self-employed, in at least 26 of the 66 weeks immediately preceding the expected week of childbirth (or adoption placement date);
• They must have earned an average of at least £30 per week in any 13 weeks of those 66 weeks (that’s £390 in total); and
• The mother/primary adopter must have created the option to take SPL either by returning to work early and therefore ending her maternity or adoption leave, or by giving notice to curtail their entitlement to maternity or adoption leave.

There are some added complexities for self-employed earners. Contact our team if you require further explanation of this subject.

3. What is the process of requesting SPL?

There are three main steps in order to request SPL.

• First, the mother/primary adopter must either return to work or give notice that she is curtailing her maternity/adoption leave, together with either a Notice of Entitlement or a declaration of consent and entitlement.
• Second, a Notice of Entitlement must be served by the other parent if they wish to take SPL.
• Third, a Period of Leave Notice must be provided by the employee wishing to take the leave stating when they intend to take it.

4. How do you calculate the entitled leave?

To work out how much SPL an employee and the other parent are entitled to, you must deduct the number of weeks of maternity (or adoption) leave that the mother (or primary adopter) has taken -or is planning to take- from their full entitlement of 52 weeks.

The remainder can then be taken by the mother/primary adopter as SPL (rather than maternity/adoption leave) OR by the other parent as SPL OR or by a combination of the mother and the other parent.

Points to note:

• Up to three separate blocks of parental leave can be taken, with at least eight week’s written notice of leaving being taken.
• The separate blocks must be made up of at least a complete working week and cannot be used as a method to reduce working hours (e.g. by taking SPL for two days a week and working the other three days).
• Whilst both parents are permitted to take SPL at the same time, it should be noted that doing so will mean that both of them taking leave will substantially reduce the amount of SPL remaining available to them.
• If both parents meet the SPL requirements, they will need to decide how they want to divide their SPL in terms of time/dates but also their Shared Parental Pay entitlement.

5. What is Shared Parental Pay?

It is important to note that the rules in respect of Shared Parental Leave and Shared Parental Pay are different.

If both parents:

(a) have been working for their employer continuously for a period of 26 weeks, by the end of the 15th week before the expected date of childbirth (or adoption placement); and
(b) they also have earnings not less than the lower earnings limit in the 8 weeks leading up to the 15th week before the expected week of childbirth- then

ShPP is paid weekly at the statutory rate (currently £184.03*) or 90% of their weekly earnings, whichever is lower.

(*rates correct at time of writing, but increase annually).

The amount of Shared Parental Pay (“ShPP”) is then calculated by deducting the number of week’s maternity pay (or adoption pay) that the mother (or primary adopter) has already taken -or plans to take- from the 39 weeks of pay available. The remaining number of weeks will therefore be the amount of ShPP that is available. This means that, in practice, a maximum of 37 weeks of ShPP would be available – allowing for the 2 weeks of maternity/adoption pay for the compulsory period of leave.

Points to note:

• ShPP is only available to the mother/primary adopter if she is otherwise eligible to receive maternity (or adoption) pay.
• If the mother is only entitled to maternity allowance it is still possible that the other parent may be entitled to ShPP (even though the mother does not qualify for it).

We are often asked if it is unlawful to pay enhanced Maternity Pay and not apply a similar enhancement to Shared Parental Pay. This has been addressed by the Court of Appeal who confirmed that it is not discriminatory to pay women on maternity leave more than men taking Shared Parental Leave. Therefore, employers can enhance maternity pay and not Shared Parental Pay without being guilty of discrimination, at the current time. It would though be worth considering whether you wish to encourage all parents to take leave and thus whether you might choose to enhance SPP accordingly.

6. Can you refuse a SPL request?

If the employee requests one continuous period of leave in any given Period of Leave Notice then this must be accepted by the employer. If the employee suggests a discontinuous period of leave pattern in a Period of Leave Notice, then the employer has a period of two weeks to consider the request, propose alternatives and accept or refuse the request. If refused, the employee is entitled to take the period of leave in one continuous block.

In education/school settings a member of staff will often ask for periods of SPL to be taken in line with term times and break up the leave taking the school holidays as paid leave in between. This is a quirk of the legislation in that, unlike maternity or adoption leave, SPL can be brought to an end and started again.

It is against the law for an employer to treat an employee unfairly because they’ve taken- or intend to take- SPL.

7. How many people take SPL (aka will this affect us)?

The latest figures suggest that only around 5% of eligible parents have opted to use Shared Parental Leave. There could be several reasons for this- lack of awareness; fear of how employers and colleagues will treat an application; overly complicated rules and also personal financial reasons.

The Labour government had suggested a review of SPL within its first year, and now we have confirmation an inquiry has been launched by the House of Commons Women and Equalities Committee (WEC) to consider options to reform it and statutory paternity rights. The call for evidence is open for submissions until Friday 31 January 2025 so watch this space. In the meantime, it is a complicated and rules-bound area of law so please contact us if your require assistance.