Shared Parental Leave … at a glance

Shared Parental Leave (SPL) has now been in place for a year and so whilst still relatively new, it has now passed its initial bedding in period. The leave provisions and process remains the same as when first introduced in 2015 but the process is still complex and is open to being made a very complicated an protracted process!

The pay and leave itself are separate but obviously run in tandem. The rate of maternity/shared parental leave pay (SSPP) has been confirmed as frozen at 2015/2016 rates for 2016/2017, which is at £139.58 a week (or 90% of employee’s average weekly earnings). Maternity/adoption and paternity leave pay doesn’t change as a result of the employee taking SPL and the payments remain at a total of 39 weeks pay (unless the company provides enhanced SPL benefits) but SPL does curtail maternity/adoption leave. So obviously one does still impact the other.

ACAS have prepared a quick overview of what both the employee and employer need to do and when but this is a very simplified version of a complex process and is:

	Employee	Employer
1. Become aware of a pregnancy or match	Is SPL suitable? Consider what leave arrangements work best	(If aware) discuss early intentions and other leave options
2. Choosing SPL and notification of entitlement	Notify the Employer of eligibility	Discuss early intentions and make preparations and plans
3. Notification of a leave booking	Notify the Employer of a booking leave	Consider the impact of a leave booking and discuss
4. Outcome	Leave begins or the request is withdrawn	Confirm and communicate the outcome

 

With SPL interestingly the onus is on the employee to find out about the right, the provisions and process. It can of course be used by those adopting too.

Prerequisites

There are a number of prerequisites to an employee being able to rely upon SPL:

• The first is eligibility.
• The second is that the other parent must meet the ‘employment and earnings test’.
• The third is that the expectant mother must also meet the qualifying requirements for SSPP, which is the same test as qualification for SMP/Adoption pay.

The main elements of SPL are that it allows parents to share up to 50 weeks of leave (the first two weeks after childbirth are considered a health and safety requirement that the mother must take) and they can share up to 37 weeks of pay.

Once invoked, SPL curtails the mother’s maternity leave thereafter leaving the balance of the maternity leave/pay to be shared between both parents.

Well how does this work?

Before maternity/adoption leave was a continual block of leave that could be interspersed with the 10 keeping in touch days that didn’t break either pay or leave provisions. Now under SPL blocks of leave can be taken interspersed with periods of returns to work. Both parents can be off in turn or at the same time together. In addition it invokes a right to each parent having up to 20 keeping in touch days (Shared Parental Leave in Touch (SPLIT) days) in addition to the mother’s 10 keeping in touch (KIT) days during maternity leave. This of itself may be a good reason that employee’s wish to use it. 30 days potentially paid at full pay could make an enormous difference to a family with a new child.

In reality the process is much less rigid than just maternity leave and can be open to repeated and continual changes and further requests throughout the period of SPL. Gone are the days of any employee saying that they are pregnant and wish to go on maternity leave and return at the end as agreed. The much greater degree of flexibility within the SPL system rightly enables expectant/new mothers to choose when they are off to a degree, share leave with their partner and so effectively a new mother can be off work, then back, then off then back and so on. This does create a great difficulty for employers however in arranging maternity or adoption leave cover.

So how could this situation result and what are the solutions?

The employee is only ever entitled to 39 weeks statutory pay but this can move like a sliding scale along, as long as the employee gives notice before the end of the 39^th week after birth/adoption. However the employee can opt into SSPP right up until the end of that 39^th week, although she must give at least 8 weeks notice of when she intends to start SSPP. Her intention of when she needs to take SPL or SSPP is called a booking notice and unless agreed otherwise she is only entitled to 3 booking notices. Booking leaves can be a continuous period or in blocks over time.

So what now – what can you do if that isn’t workable for the business?

An employer cannot refuse a single block of leave and if they can’t accommodate separate blocks they can propose alternatives or refuse the pattern of leave requested. However then the employee can do 1 of 3 things:

1. They can specify within 5 days at the end of discussions when they will start their leave; or
2. If no date is specified, the start date becomes the start date of the first period of block leave originally requested; or
3. They can withdraw the application within 15 days of the original notification. The key in this instance is that then the request doesn’t count as one of their 3 booking notices.

So if an employee understands the system and wants to, they can make a request for discontinuous periods of leave, go through the process, have it rejected, it starts on the first discontinuous period requested, they then withdraw the request and have their 3 booking notices again! They can then do the same for the second period they wanted and so on – thereby forcing a pattern of leave by submitting separate booking notices for each period of leave.

They could alternatively elect to take SPL, take all the leave in one block and benefit from the usual 10 KIT days plus an additional 20 SPLIT days. This however may be a consequential benefit of using SPL but in one block for both the employee and employer.

As you can see this makes it a very fluid process which makes covering shared parental leave absence of either parent quite difficult.

If you have any questions on this or any other aspect of employment law, please do not hesitate to contact Natalie Roach on Tel: 01869 277692 or via email: Natalie@oakemploymentsolicitors.co.uk.