How will shared parental leave work?
The Children and Families Act 2014 has set out that for children born after 5th April 2015, the right for both parents to share parental leave will apply. At the moment, the regulations setting out how this will be done are at a final drafting stage.
The new rights are known as shared parental leave and they are optional. They can only be taken in the year after the child is born (adopted). The rights are only for parents who both work, most commonly both as employees.
- The mother is entitled to 52 weeks maternity leave altogether (39 weeks of it paid by employer).
- The mother must take 2 weeks compulsory maternity leave after the baby is born (for health and safety reasons). These 2 weeks are included in the 52 weeks. This isn’t necessary for adoptions.
- The father or child’s other parent will be entitled to ordinary paternity leave of 2 weeks (all paid by employer).
These rights will continue. But there will no longer be a right to additional paternity leave (for babies born after 5th April 2015), even when parents decide not to opt for shared parental leave.
For babies born after 5th April 2015…
- The mother must still take 2 weeks compulsory maternity leave. This is fully paid. This is still known as maternity leave and the notice an employee must give to an employer for this maternity leave remain the same as it currently is.
- The father/partner still gets 2 weeks ordinary paternity leave. This is fully paid. This is still known as paternity leave and the notice for this remain the same as it currently is.
- There are a further 50 weeks of leave left and a further 37 weeks of paid leave left available.
- The parents can share these weeks and either take them at the same time or consecutively provided they do not take more than the 50 weeks in total or get paid more than 37 weeks in total. This will all be known as shared parental leave.
- To apply for shared parental leave, firstly the mother has to “curtail” her maternity leave. She must give at least 8 weeks notice to her employer that her maternity leave should end. At the same time, she must also serve her notice of entitlement and her intention to take shared parental leave. This must be 8 weeks before the leave is due to start.
- The father/partner has to “opt in”. They also have to serve a notice of entitlement and their intention to take shared parental leave to their employer. This must be given 8 weeks before the leave is due to start.
- Both parents must sign the other’s notices. (Presumably rules will also be set out that allows both sets of employers to check the situation with each other).
- If each parent has only requested one continuous period of leave then their respective employers must agree to it. If one or both parent wishes to take it in stages then the employer has the right to refuse it. If it is refused then the employee must take it in one continuous period or withdraw the application. The leave must be a minimum of a week and must be taken in multiples of weeks.
- The provisions for sharing the pay will require similar requirements. These provisions are not yet in final drafting form so we do not have any more detail on these.
So in the most straightforward of cases, let’s say that M is due to have her baby in 1st week of May 2015. M provides notice of maternity and maternity leave in usual way. P gives his employer notice of paternity leave for first two weeks of May in the usual way.
M and P decide they want the rest of the time to be shared parental leave (SPL) rather than maternity leave. They want to share out the next available 50 weeks as 25 weeks SPL each rather than maternity leave. They want to take it at the same time rather than separately. So the SPL will start on around 14th May (after compulsory maternity leave and after ordinary paternity leave) for both M and P.
M and P must give their respective employers’ notice of the SPL no later than 19th March 2015. M must also give her notice to curtail maternity leave no later than 19th March 2015 as the leave will no longer be maternity leave from 14th May onwards. Both parents must return to work after the 25 weeks is over. There will be no more right to additional leave, unpaid or otherwise.
What this means for you
The principle seems straightforward. In the year after the baby is born, the traditional leave can be shared out between the parents. The complicated areas that we foresee are:
- The fact that leave can be rejected if it is requested in several parts. This will perhaps mean meetings, appeals, negotiations without any clarity as to when it must be finalised prior to the leave starting.
- The relationship between the respective employers and who has the responsibility for pay or checking that the maximum leave and pay is met.
There are also some complicated provisions about the initial notices being non binding and then binding notices put in.
Once the regulations for procedure are approved and the regulations for pay and finalised then this should be made clearer. But for those that can do the maths, this will apply to employees who are (or their partner’s are) pregnant now so queries may be raised about their rights when the baby is born.
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