Attention employers: final regulations for shared parental leave published
In my previous blog on this subject, I discussed this new law in detail as it applies to anyone whose child is due to be born or placed with them after 5th April 2015.
The Regulations hadn’t been published and there were some gaps in the procedure. So I’m covering this again to make sure employers are aware of the final procedure should they receive, or have already received, a request for shared parental leave (SPL).
What are the new rights?
The new rights are optional. They allow parents to divide 52 weeks leave and 39 weeks pay between themselves during the first year of their child’s life/adoption.
The mother must still take the initial 2 weeks as compulsory maternity leave for Health and Safety reasons. The father/partner can still take 2 weeks paternity leave, which often is taken at the same time (in addition to the SPL).
The usual procedures apply for requesting maternity and paternity leave.
How to qualify for SPL
For the mother to take SPL…
She must be employed, have a partner, be eligible for maternity leave/primary adoption leave, and have worked for the same employer for 26 weeks up to the 15th week before the due date/matching date.
For the partner to take SPL…
They must be an employee, be sharing primary responsibility for the child with the other parent, and have worked for the same employer for 26 weeks up to the 15th week before the due date/matching date.
For one or both to qualify for Shared Parental Pay (ShPP)…
One or both of them must have had normal weekly earnings in the last 8 weeks before the 15th week before the due date/matching date. Normal weekly earnings are currently £111 per week up to 5th April 2015, and then £112 per week for the 2015/2016 tax year.
To qualify for both SPL and ShPP, both the mother and the partner must have worked for at least 26 weeks in the last 66 weeks prior to the due date/matching date, and earned an average of at least £30 per week in any 13 week period. If one of them hasn’t done this, neither will be eligible for SPL or ShPP
If the new parents wish to use SPL, the procedure is as follows:
- The mother/primary adopter must give notice to their employer to curtail the maternity leave/adoption leave. This notice is binding. It must be submitted at least 8 weeks before the date they want that leave to end.
- At the same time, both employees, to their respective employers, must complete a Notice of Entitlement and submit it at least 8 weeks before the SPL is due to start. This confirms how much SPL they’re both entitled to take, how much SPL they intend to take and when they intend to take it. The notices must contain both their signatures. The leave must be set out in full weeks. This is not binding and, at this stage, sets out their intentions.
- At the same time, if one or both wish to claim ShPP then they must complete a Notice of Entitlement to confirm how much ShPP they’re entitled to take, how much they intend to take and when they expect to take it. Again, the entitlement must be set out in full weeks. The notice must contain both their signatures. If they wrongly give notice that they’re eligible when they’re not, this could be recovered as overpayment of wages. The current rate of ShPP is £138.18 per week.
- An employer can, within 14 days of receiving a notice, request contact details of the employee’s partner’s employer, and is entitled to contact them bearing in mind duties of confidentiality and data protection. The employee must provide this information within 14 days. Best practice may also be to meet with the employee to see if their indications on the Notice of Entitlement can be accommodated.
- Once the Notice of Entitlement is given, the employee must book the leave by sending a Leave Notice. They must do this at least 8 weeks before any period of leave would begin, and they can book up to three blocks of leave. The notice to book the leave must be in writing, dated and set out what leave should be taken.
- The employer receives the Leave Notice. If the notice sets out a continuous period of leave then it must be accepted. If it’s discontinuous then they have 14 days to discuss it with the employee and see if the request or a modified version can be agreed. A meeting is recommended and it’s recommended that the employee is accompanied.
- After that meeting/or receipt of the notice, the employer can a) accept the leave in writing within 14 days, b) confirm a different arrangement based on the agreement reached in a meeting, or c) refuse if the leave is discontinuous confirming clear reasons, proposed alternative dates and what the default position is (i.e. all the discontinuous leave requested will be taken as continuous leave from the same start date).
- The employee can put in a new or varied request for leave, bearing in mind that only 3 requests can be given in total.
The rules are much the same as I stated in my previous article, How will shared parental leave work?
They do appear complicated, particularly in relation to the timing of the notices. The Notices of Entitlement really should be filed much more than 8 weeks before the leave if a meeting is to be accommodated, and for formal Leave Notice, filed no later than 8 weeks.
It’s anticipated there will be very few notices for SPL to start with, given the culture change. But if one is received, the procedure will need to be followed closely and as amicably as possible so it can become familiar and discrimination or detriment claims are avoided.
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