The new Shared Parental Leave Regulations allow parents whose child is born or, baby who is matched / placed with them, after the 5th April 2015 to share up to 50 weeks leave and 37 weeks of the pay that had previously only been available to the mother.
The Regulations allow parents greater flexibility as to the arrangements they can make to care for their child during the first year following its birth or adoption. The Regulations also allow parents to take leave at the same which may prove very helpful to those caring for a new born baby.
Who Qualifies for Shared Parental Leave?
In order to qualify for Shared Parental Leave, the mother or adopter must give notice to curtail their maternity or adoption entitlements and must share the main responsibility for caring for the child, with the child’s father or their partner. They must also be an employee and satisfy the requirements of the continuity of employment test. The other parent must also satisfy the employment and earnings tests.
The regulations apply to couples in same sex relationships.
Continuity of employment test – worked for the same employer for at least 26 weeks at the end of the 15th week in which the baby is due ( or, when a adopter is notified of having been matched with a child or adoption) and is employed by the same employer during the first week that Shared Parental Leave is taken.
Employment and earnings test – worked for at least 26 weeks in the 66 weeks leading up to the date that the baby is due to be born and have earned above the threshold of £30 during 13 of those 66 weeks.
No obligation to share leave
The Regulations do not impose any obligation on mothers to share leave. In fact mothers are still permitted to take up to 52 weeks of Maternity Leave (39 weeks of which are paid) and fathers will still be entitled to take 2 weeks paid Paternity Leave. Mothers who have previously given notice of their intention to share leave are also given a six week window during which they can change their mind and stay on leave.
Leave must be agreed between the employee and employer
The employer must be given 8 weeks’ notice of the employee’s intention to take Shared Parental Leave. The leave may be taken at any time beginning at the time that the baby is born or the baby is placed with the adopter. The leave must be taken in complete weeks which can be continuous, which an employer cannot refuse or, alternatively discontinuous in which case an employer can refuse. An employee may submit up to 3 notices to book leave.
Deborah Francis, an Employment Law specialist in our Civil Litigation Team, said “Employers may find the changes administratively difficult to deal with and as such best advice would be to ensure that you have a written policy in place.”
On a positive note, the changes allow parents to share the responsibility of caring for their baby and they may help reduce the number of women who find themselves subject to pregnancy and maternity discrimination, which is still rife despite prohibitive legislation. Of course the fact that the mother has the right to decide whether to she wishes to take all of the Shared Parental Leave before a father can request the right to take any leave may open the door to equality arguments.
For advice applying Shared Parental Leave in your company, contact us on 01273 604123 or email us. Read more on employment law.