A level playing field?

David Murphy is an employment lawyer at City law firm Fox Williams. This article first appeared on Reed Global. 

For the first time parents will be able to take significant amounts of time off work with their partners in the first year of their child’s life. The regulations came into force on 1 December 2014 and apply to parents of children who are due to be born or placed for adoption on or after 5 April 2015.

What is shared parental leave?

Shared parental (SPL) is a new type of leave for parents. It is an “opt-in” regime. It gives mothers the option of ending their maternity leave early and swapping the balance of their maternity leave for SPL which they can share with their partner if they wish. SPL can be taken by parents together or by one of them alone.

SPL has two distinct new benefits for parents:

1. They can take SPL at the same time as each other. SPL can also be taken by the father/partner while the mother is still on maternity leave.
2. Unlike maternity leave entitlement whichis lost if the mother returns to work, PL remains. So, by swapping maternity leave entitlement for SPL, others can return to work for a period of time and then take some more timeoff, in the form of SPL, later on in the child’s first year.

Maternity leave will remain the default regime. It gives a mother 52 weeks of maternity leave (and 39 weeks of statutory maternity pay if she qualifies for it). No mother will be obliged to give up their maternity rights and opt into the SPL regime.

This means that if the mother does not opt in, the only statutory entitlement for fathers/partners will be 2 weeks of ordinary paternity leave and pay (if they qualify for it). The current, rarely used additional paternity leave regime is being phased out and will not be available to parents of children who are due to be born or placed for adoption on or after 5 April 2015.

How much SPL can an employee take?

The total amount that can be taken by either or both parents is 52 weeks less the amount of time which the mother takes as maternity leave. By law, mothers have to take the first 2 weeks of their maternity leave (4 weeks if they work in a factory).

Who is eligible for SPL?

An employee is eligible for SPL if:

1. They are the child’s mother, father or the mother’s partner and are one of two such people sharing the main responsibility for the care of the child;
2. They have at least 26 weeks’ continuous employment by the 15th week before the child’s due date, and are still employed by their employer in the week before SPL is to be taken;
3. The other parent has worked (in an employed or self-employed capacity) in at least 26 of the 66 weeks before the child’s due date and has had average weekly earnings of at least £30 during 13 of those weeks; and
4. Both parents give the necessary statutory notices and declarations.

How does an employee take SPL?

If an employee is entitled to SPL, there are 3 types of notices which must be given:

1. Curtailment Notice: a notice given by the mother of her intention to curtail (end early) her maternity leave;
2. Entitlement Notice: a notice given by the employee which informs their employer that they are entitled to SPL and intending to take it
3. Booking Notice: a notice given by the employee which informs their employer of the period of SPL which they are intending to take.

Detailed rules specify the information these notices must contain but any employee who intends to take SPL needs to give their employer at least 8 weeks’ notice.

Does an employer have to allow an employee to take SPL?

If an employee requests one continuous period of SPL in a booking notice, they must be allowed to take the SPL requested, provided all the conditions are met and correct notices and declarations given. There is no ability to refuse a request for business reasons.

If the booking notice requests discontinuous periods of SPL, the employer has two weeks to accept the request, propose alternatives or refuse it. If the employer refuses the periods requested, the employee may choose to take the total amount of leave requested as a continuous period or withdraw their original notice. An employee may serve up to 3 booking notices.

Do employees taking SPL have any legal protection?

Employees taking SPL have similar legal protection to those taking maternity leave: additional redundancy protection; the right to return to work; and protection from adverse treatment or being dismissed for taking or seeking to take SPL.

What about pay?

If a mother does not use up her full entitlement to statutory maternity pay then the balance of her entitlement will usually be convertible into statutory shared parental pay. However, unlike statutory maternity pay there is no requirement to pay the first 6 weeks’ of SPL at 90% of salary.

Employers who provide enhanced maternity pay, above the statutory minimum, face the difficult decision of whether they should provide enhanced shared parental pay too. There has been speculation that enhancing maternity pay but failing to enhance shared parental pay might be sex discrimination against men.

A recent, non-binding Tribunal case on the outgoing additional paternity leave regime has suggested that such a failure would not constitute direct sex discrimination but might constitute indirect sex discrimination if it cannot be objectively justified – and the ability to objectively justify it is likely to turn on the demographics and related issues of the particular employer. It is likely that before long there will some Tribunal cases on this issue, possibly backed by unions.

Employers who enhance maternity pay but not shared parental pay should in any event consider drawing employees’ attention to the fact that they will lose their enhanced pay if they choose to swap maternity leave for SPL at a time when they would be receiving enhanced maternity pay.

David Murphy is an employment lawyer at City law firm Fox Williams

This article is of general application and of general guidance. It should not be relied upon without first seeking separate legal advice. No liability is accepted for actions taken or omitted to be taken as a result of relying on article alone.

Tips for employees:

1. Plan ahead.The notice requirements under the SPL regime are onerous. Give yourself time to check that that you and your partner satisfy the SPL conditions and ensure that you provide all the required information and declarations in plenty of time.
2. Talk to your manager about your intentions.This is particularly important if you wish to apply for discontinuous periods of SPL.

Tips for HR professionals and managers

1. Raise awareness of SPL among fellow managers. They need to have an idea of the basic principles in case an employee asks about SPL and states an intention to take it.
2. Consider training managers on best practice in relation to SPL and the importance of not making comments such as “we will have to take this into account in your pay review”. Most managers are aware that they should not make such comments about women taking maternity leave; the same principle now applies to men and women taking SPL.
3. In workforce planning and budgeting exercises, be mindful of the possibility that men as well as women may take extended periods of leave during the year. Consider what cover is available or may be needed if key deadlines or targets need to be reached during a particular period.
4. Try to encourage employees to be open about their SPL plans where possible. While the SPL regulations require an employee to give at least 8 weeks’ notice of their intention to take a period of SPL, it may help to plan ahead if employees are encouraged (though not under an obligation) to notify HR and their line managers as early as possible if they are considering taking a period of SPL.

The future: a cultural shift?

The government expects the take up rate of SPL to be about 2-6% of those eligible to take it. However, in a recent survey by a law firm over 60% of employees expressed an interest in SPL. While take up may initially be slow, it may be the beginning of a cultural shift which gains momentum over time, with childcare being seen less as a ‘working mothers’ issue and more of a “working parents” issue.

If the new SPL entitlements gain traction, it would be logical to also see an increase in flexible working requests from men over time. Employers need to be cautious to treat the taking of SPL and requests for flexible working from men and women in a similar way, and to have a consistent approach. Rejecting a flexible working request from a man which would have been accepted for a woman is likely to be sex discrimination.