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Shared parental leave – Q&A’s

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Shared parental leave – it seems like everyone (especially in the HR world) is talking about this at the moment. This is unsurprising given that its “live date” is just around the corner.

Shared parental leave will be available for parents of children due to be born or adopted on or after 5 April 2015, and requests for SPL can be made by employees now, since 1 December 2014. Some employees may already be asking you questions about shared parental leave and this new right. You should therefore ensure that your family-related policies and procedures are up-to-date, if you have not already done so.

Rather than duplicate the vast amount of literature there is out there on shared parental leave, I decided that it would be much more useful for employers if I set out some frequently asked questions on shared parental leave (SPL) along with my answers. These are the questions on everyone’s lips:

(Please note we refer to the right for birth parents throughout for ease of reference, the same rights apply to adoptive parents).

(i)         Q:        What is SPL?

A:         SPL is a completely new right that is distinct from any existing family related rights such as maternity, paternity, adoption and parental leave. SPL allows parents to share up to 50 weeks of leave between them from birth until a child’s 1st birthday. Three important points on this:

  • First, mum must take the first 2 weeks after the birth as compulsory maternity leave (4 weeks in some cases).
  • Second, ordinary paternity leave still exists (i.e. 2 weeks paid leave), so dad can take this in addition to SPL.
  • Third, whilst all other types of family friendly rights continue, additional paternity leave will be abolished.
(ii)        Q:        Does SPL replace maternity, paternity and/or adoption leave?

A:        No, these rights still exist and run alongside SPL, apart from additional paternity leave which will be abolished. SPL can be taken instead of maternity or adoption leave, it is the employees choice. It can also be taken alongside ordinary paternity leave and unpaid parental leave.

(iii)       Q:        Why do we need SPL, there are already existing rights for employees in regard to family related leave?

A:        The idea behind SPL is to give families greater flexibility when deciding which parent should take time off work to look after a new-born. The aim is to move away from the assumption that women should be the carers of the child at the earliest stages of a child’s life, and to avoid possible stereotypes and discrimination against women.

(iv)      Q:        How is SPL different to the existing right of Parental Leave?

A:        SPL is a paid entitlement of leave for parents up until a child’s 1st birthday. Parental leave on the other hand is the existing right for parents to take up to 18 weeks unpaid leave up until a child’s 5th birthday (or 18th if in receipt of disability living allowance).

(Please note that from 5 April 2015, the right for unpaid parental leave will also be extended for eligible employees. This extends the right for parents to take this unpaid leave up until the child’s 18th birthday).

(v)       Q:        Who decides how SPL is split?

A:        The parents are free to choose how to divvy up SPL. This may include them taking it in turns to have leave, having leave together or even one parent not taking any leave at all.

(vi)      Q:        Do employees have to take their share of SPL all at once or can they split the time (i.e. have some time at work, some time on leave and so on)? 

A:        Parents can take up to three separate periods of leave or use it up all at once. They make the initial choice. However, each period of leave must last longer than a week.

(vii)     Q:        Must employees “take it in turns” to look after the new-born?

A:        No, parents can be on SPL at separate times or together.

(viii)    Q:        Does an employer have to agree to an employee’s SPL request? 

A:        If an employee requests a continuous period of leave, an employer must agree to it. However, an employer may refuse a request by an employee to split the period of leave and insist that an employee takes the leave all at once. Any refusal of leave must be given to the employee in writing within 14 days of their request.

(ix)      Q:        What happens if the Expected Week of Childbirth (EWC) is on or after 5 April 2015, but the baby is born early?

A:        The most important concept in SPL is the EWC. It does not matter when the child is actually born, whether early or late. The entitlement for SPL is only dependent on whether the EWC falls on or after the 5 April 2015 not that baby is born after then.

(x)       Q:        What are employees entitled to be paid whilst on SPL?

A:        Whilst on SPL employees may be entitled to Shared Parental Pay (SPP). If an employee qualifies, SPP is paid up to 37 weeks at the lower of the statutory rate (currently £138.18 per week) or 90% of the parent’s pay. This is the same amount of pay as statutory maternity and paternity pay. However, there is currently no requirement for employers to pay the first 6 weeks of SPP at 90% of the parent’s earnings as is the case for statutory maternity pay.

(xi)      Q:        If a company pays enhanced Maternity Pay during maternity leave, does that mean that they should pay enhanced Shared Parental Pay (SPP)?

A:        Employers will need to think careful about whether or not to replicate enhanced maternity pay and provide enhanced SPP. The issue that an employer may face is that if an enhancement is not considered for SPP, it may be arguable that a man on SPL may be able to bring a sex discrimination claim. Clear business reasons will need to be outlined for not replicating enhanced maternity pay in SPP.

(xii)     Q:        There are Keeping in Touch (KIT) days on maternity leave; is there something similar during SPL?

A:        Quite simply, yes there is. During SPL each parent is entitled to 20 days shared parental leave in touch (SPLIT) days per employer. There is no obligation on an employer to offer these days or for an employee to agree to them. Employees should be paid for working a SPLIT day, this is to be agreed.

Remember payments to employees during SPLIT days need to meet the National Minimum Wage and should not be discriminatory. We would suggest paying employees at their contractual rate, and offset any SPP that they would have received for that week.

(xiii)    Q:        What happens to other employment rights during SPL?
  • Dismissal – If an employee is dismissed on or after 1 December 2014 for a reason, or principal reason, that is connected with SPL this will be deemed to be automatically unfair. An employee is entitled to bring this claim from the very first day of their employment.
  • Terms & Conditions – During SPL an employee is still entitled to all the benefits under their existing terms and conditions of employment, other than relating to pay. Employers will need to ensure that they continue to provide all non-cash benefits during SPL.
  • Redundancy – If an employee’s role is made redundant whilst they are on SPL, then that employee must be given a right of first refusal on any suitable alternative employment.

If you would like any further advice on shared parental leave or any other aspect of employment law, please do contact the team for a confidential chat.

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