Shared parental leave and pay

John Clinch, Sharpe Pritchard

The coalition government’s flagship family-friendly legislation comes into force for parents of all children born after 5 April this year.

This important new employment right gives parents more flexibility in caring for their child in the first year following birth. References in this piece to birth apply equally to adoption. References to mothers generally apply to primary adopters and references to fathers apply to the adoptee’s partner. The primary adopter can share adoption leave and pay with their partner.

Parents will have a pot of leave, called shared parental leave, and can decide to take it at the same time or in turns. Shared parental leave, which is paid, will mean that mothers, fathers and partners who are eligible can decide how to share time off work after their child is born. Some employers may, in fact, already have received notices of intention to take this leave.

An employed mother still has a right to a total of 52 weeks’ maternity leave and 39 weeks’ statutory maternity pay. But she can now end her maternity leave early and, with the agreement of her partner or the child’s father, elect to be on shared parental leave rather than maternity leave. She could also return to work for some of the time and then resume leave at a later date. If both parents qualify, they will need to decide how they want to divide their total of 50 weeks of shared parental leave; it is not the whole 52 weeks because the mother must take two weeks’ compulsory maternity leave.

Fathers can still take paid paternity leave of two weeks but “additional paternity leave” is replaced by shared parental leave. Unpaid parental leave remains.

To qualify, the mother must be entitled to maternity leave and give notice to curtail it. She must also share caring responsibility with the child’s father or a partner. To be eligible to take shared parental leave, an employee must be employed for at least 26 weeks at the end of the 15th week before the week the child is due. In turn, the other parent must be economically active, which involves working for a minimum period before the due date and have earned a minimal amount. For instance, a self-employed parent, who obviously cannot take shared parental leave, could pass this test and allow the other parent to take shared parental leave.

But if both satisfy the 26-week continuous employment test, they will be able to share the leave. Statutory shared parental pay will then be paid at £139.58 or 90 per cent of average weekly earnings, whichever is lower, for up to 37 weeks. As with maternity, there is the right to return to the same job but there are exceptions.

It is for the mother to decide whether to use just her maternity leave or opt for shared parental leave. She need not end her maternity leave for her partner to start shared parental leave, provided she has given notice curtailing her maternity leave. The total amount of available shared parental leave is then reduced by the time the mother spends on maternity leave.

An employee wishing to take shared parental leave must notify the employer at least eight weeks before the start of the leave. This has to include how much leave they are entitled to and when they expect to take it. Up to three notices booking or varying leave can be given. If requested, a partner must give the employer a copy of the child’s birth certificate and the name and address of the mother’s employer.

Shared parental leave can be taken at any time beginning with the date of birth and ending 52 weeks later. Leave has to be taken in complete weeks either in a continuous period, which an employer cannot refuse, or in a discontinuous period, which the employer can refuse. If a request for discontinuous leave is refused then the total amount of leave requested automatically becomes a continuous block, unless it is withdrawn.

Employees and employers should therefore try to agree when blocks of leave can be taken. It would be wise for larger employers to develop a policy that sets out the procedures for applying for and taking shared parental leave. The policy must meet the minimum statutory requirements. It is always good practice when drawing up any policy to consult with employees or trade unions as this will help to ensure it works for everyone. Many organisations offer enhanced maternity rights, usually by giving mothers maternity pay above the statutory minimum. This is so they may feel they should ‘mirror’ their maternity enhancements in any shared parental leave policy, but this is not a requirement. The key is that, under any shared parental leave scheme, men and women are treated equally and paid the same