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New draft legislation means that employees may be entitled to Shared Parental Leave (“SPL”) and statutory Shared Parental Pay (“ShPP”) from 1 January 2015.
The new law, which is currently before Parliament and due to come into effect from 1 December 2014, would be in relation to babies due or children to be adopted on or after 5 April 2015.
Currently, if a father wishes to take extra time off work (after his allowed two weeks) he may receive additional paternity leave and pay.
The new SPL and ShPP mean that both the mother and the father (or the person who is married to, or the civil partner, or the partner of the relevant individual) will be entitled to share their leave to give parents more flexibility in order to both contribute to the care and responsibility of their child. Parents can decide how much of the SPL each of them will take. However SPL must be taken within the first year of the baby’s life (or within 1 year of adoption) for a period of up to 52 weeks.
Mothers in employment will continue to be entitled to 52 weeks of maternity leave, including 39 weeks of statutory maternity pay or maternity allowance.
A mother must be entitled to maternity or adoption leave. There is a two-step process to establish:
Step one - continuity test
A parent seeking to take SPL must have worked for the same employer for at least 26 weeks at the end of the 15th week before the week in which the child is due (or the week the adopter was notified of having been partnered with a child for adoption) and is still employed in the first week that SPL is to be taken.
The other parent has to have worked 26 weeks in the 66 weeks leading up to the due date and have earned in excess of the maternity threshold, which is currently £30, in 13 of the 66 weeks.
Step two – individual eligibility to pay
To qualify for ShPP the parent must, as well as satisfying the continuity test, have earned an average salary of at least the Government’s Lower Earnings Limit (currently £111) for the 8 weeks prior to the 15th week before the child is due (or the week the adopter was notified of having been partnered with a child for adoption).
It will only be for the mother or adopter to continue on maternity leave or take the options of SPL.
Paternity leave will still be an entitlement and will be for a period of a maximum of two weeks, which must be taken in a single block, within 56 days of the birth.
All employed pregnant women are entitled to paid leave for antenatal care made on the recommendation of a registered medical practitioner. Save for the first appointment, employees should show the employer, if requested, an appointment card or other documentation showing that an appointment has been made.
From 1 October 2014, fathers and partners of pregnant women are entitled to leave to attend two antenatal appointments. It is the employer’s discretion whether the leave will be paid, under its terms and conditions.
An employee deciding to take the SPL must inform his or her employer of the entitlement and must ‘book’ the leave, giving the employer at least eight weeks’ notice.
An employee can give up to three notices. Each notice can be in a block of continuous leave or for a pattern of discontinuous leave involving different periods of leave. A request for discontinuous leave can be refused by the employer and a single continuous block of leave required. The employer cannot refuse continuous blocks of leave but can attempt to seek a modification to the continuous leave request.
Parents will be facing tough decisions when deciding whether SPL is best for them. They will need to consider whether they qualify for the SPL and ShPP, the implications on their family finances, when the mother wishes to return to work and to what extent they intend to share the upbringing of their child.
Ultimately, it is the mother’s (or primary adopter’s) decision whether or not to end their maternity leave (or adoption leave) early and take the option of SPL.
Once the decision has been made, the employer must be notified. It is essential that the employer is notified at least eight weeks prior to the commencement of the leave. Employees should be encouraged to have an early informal discussion with their employers, to discuss preferences regarding the timings of the commencement of the leave.
In theory the new law could relieve some of the stresses of a child’s upbringing and development in the first year, ensuring that the parents take a team approach to the raising of their child. One does wonder, though, at the possible impact on job security for fathers/partners and whether mothers’ will be willing to give up their right to maternity leave, which could impact on their bond with their baby.
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Partner - Employment law
Luke is a specialist employment lawyer with over 20 years experience.
He specialises in employment law and advises both employees and employers. He is praised for being a creative thinker and is able to solve problems that arise in the workplace...
