The government is introducing a new right to shared parental leave and pay for babies due or children matched for adoption on or after 5 April 2015. This is part of its reforms to encourage both parents to be involved in the care of their children. Shared parental leave and pay is designed to allow parents to split time off work in the first year after birth or adoption in a way that suits them.
Maternity and adoption leave and pay are unaffected by the new right; a mother can still take these in the normal way. It is only if she decides to opt into the new regime that shared parental leave and pay apply.
Shared parental leave and pay:
- must be taken before the child's first birthday or the first anniversary of adoption;
- comprises up to 50 weeks of leave, along with up to 37 weeks of statutory shared parental pay, as the mother or main adopter has to take at least two weeks' maternity or adoption leave and pay;
- can be taken in one continuous block or several discontinuous blocks by both parents at the same time or at different times.
In order for one parent to be entitled to shared parental leave, both parents have to meet certain eligibility requirements, which include:
- the parent taking the leave has to be an employee with at least 26 weeks' service at the qualifying week, and the other parent has to be an employee or be self-employed, with minimum earnings;
- the mother has to bring her maternity leave, statutory maternity pay or maternity allowance to an end or commit to do so in the future; and
- detailed notification and declaration obligations from both parents.
The actual pattern of leave is set out in a period of leave notice given at least eight weeks before the first period of leave in that notice is due to start. The employee can submit three notices (or variations of earlier notices). Where the notice is for a continuous period of leave, an employer cannot refuse it and leave starts on the date in the notice. However, if the notice is for a discontinuous period of leave, the employer can refuse it. The notice triggers a two week window during which the employer can meet with the employee to discuss the leave pattern, which could include trying to agree a variation to the leave pattern. Ultimately if the employer refuses a discontinuous leave pattern, the employee can take the leave as one continuous period or withdraw the notice. However this does not stop the employee taking some shared parental leave discontinuously as the employee can submit three notices, each containing a continuous period of leave, but overall they will be taking three separate periods of leave.
There is no requirement for employers to check that an employee’s partner meets the conditions which make the employee eligible to take shared parental leave; receipt of the necessary declarations is sufficient. The difficulty for SMEs is likely to be managing periods of discontinuous leave, which may be disruptive and difficult to cover. However for those couples where the mother is the main earner, this could be a great opportunity for her (and her employer) to remain involved in the business while still getting time at home with a new arrival.
Although it may be some months before the babies whose parents qualify for this new right are born, these parents-to-be will be turning their minds to leave already and employers need to be prepared for requests, amend their policies and consider how they will deal with the difficult issues.
Louise Paull - LawBite Employment LawBrief
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