Shared Parental Leave
The government has introduced a right to Shared Parental Leave and Pay. The idea is that parents should share more of the rights which were previously only available to mothers, and that there should be greater flexibility for couples in making arrangements for the care of their child in the first year of life.
The law for babies due prior to 5th April 2015
All employees are entitled to 52 weeks of Maternity Leave, no matter how long they have worked for their employer. Women who started working for their employer prior to becoming pregnant and who earn enough are also entitled to 39 weeks of Statutory Maternity Pay (SMP). Women who are not entitled to SMP but who have a recent work history can in most cases claim 39 weeks of Maternity Allowance.
Fathers and partners who are employees and who started working for their employer prior to the mother becoming pregnant are entitled to 2 weeks of Ordinary Paternity Leave. Individuals who earn enough can claim Ordinary Statutory Paternity Pay.
Additional Paternity Leave and Pay is available to employees who opt to take leave after the mother of the child returns to work and who meet the various conditions. These include that the baby must be at least 20 weeks old.
The law for babies due on or after 5th April 2015
Parents continue to be able to take Maternity Leave and Paternity Leave (called “Ordinary Paternity Leave” previously) as described above. Those who are entitled are still able to claim SMP, Maternity Allowance and Statutory Paternity Pay (previously, “Ordinary Statutory Paternity Pay”). Additional Paternity Leave and Pay is no longer available.
Parents who meet the conditions are in addition able to take Shared Parental Leave (SPL), and may have entitlement to Shared Parental Pay (ShPP). SPL and ShPP are available to surrogate parents and to adoptive parents.
How long is SPL?
It is possible for a couple to take up to a maximum of 50 weeks of SPL in total. SPL lasts 50 weeks less any Maternity Leave/SMP/Maternity Allowance taken to the date the mother either curtailed her Maternity Leave or returned to work. In other words, SPL is available for the balance of the leave/pay not taken by the mother.
SPL can be taken at any time between 2 weeks after birth until the child’s first birthday. One parent or both can take SPL, provided they meet the conditions for entitlement, and parents can take SPL at the same time. It is possible for parents to take discontinuous periods of SPL, unlike Maternity Leave, Paternity Leave and Additional Paternity Leave.
Who can take SPL?
Entitlement depends on who is taking the leave, and both parents must meet certain conditions even if only one parent will actually take SPL. SPL is only available to couples (defined as marriage, civil partnership or cohabitation) or to the mother and father of the baby.
In brief, for a mother to take SPL, she must be entitled to Maternity Leave (so, she cannot be self-employed), she must have worked for her employer since before the pregnancy began, she must have curtailed her Maternity Leave or returned to work and she must have given her employer Notice of Entitlement and Booking Notice. The other parent must have worked recently (defined as employment or self-employment for at least 26 weeks in the 66 weeks before the baby is due and earning at least £30 per week for 13 of those weeks).
For a co-parent to take SPL, the co-parent must have started working for his/her employer prior to the mother becoming pregnant and must continue to work there, and the co-parent must have given his/her employer Notice of Entitlement and Booking Notice. The mother must have worked recently (see definition above), she must be entitled to Maternity Leave, SMP or Maternity Allowance, and she must have curtailed her entitlement to Maternity Leave or returned to work or, if she is not entitled to Maternity Leave, she must have ended her entitlement to SMP or Maternity Allowance.
How is SPL taken?
Notice of Entitlement must be given to the employer at least 8 weeks before the first period of SPL.
Booking Notice must be given to the employer at least 8 weeks before the first period of SPL. It contains the definitive dates for the leave, and it can be for discontinuous blocks of time.
An employer must grant a request for a continuous block of time off but may refuse a request for a discontinuous block of time. However, as each parent can give up to 3 Notice of Leaves to his/her employer, each parent can effectively compel their employer to permit 3 separate blocks of SPL.
Who can take ShPP?
A mother/co-parent is entitled to Shared Parental Pay (ShPP) during SPL if she/he has worked for his/her employer since before the pregnancy began and continues to work there, and if she/he earns enough -the test is the same as for SMP. In addition, any SMP or MA must also be curtailed before ShPP is payable – this requires a specific notification of curtailment to the employer or Jobcentre Plus.
What is the legal protection?
Employees have the right to return to the same job after SPL. It is automatically unfair to dismiss an employee for taking SPL. Subjecting an employee to detriment, for example by demoting them, disciplining them or putting them at risk for redundancy, because they have taken SPL or want to take it is also unlawful.
This article is intended as a brief overview only and is not a substitute for formal legal advice.
Burton Woods can advise both employers and parents about Shared Parental Leave and Pay, and other employment rights for parents and carers. Contact Stephanie McKeon.
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