Shared Parental Leave (SPL) – 5 April 2015
We have been talking about SPL for a while now with proposed details of the new system having been published in the Modern Workplaces consultation in May 2011. Although the government predicts that only 2-8% of eligible employees will take advantage of SPL, as we approach the 5 April 2015 employers should be ready to deal with requests. The purpose of SPL is to allow flexibility for new parents. There are complex conditions which need to be satisfied for an employee to have an entitlement to SPL and pay but, broadly, the new regime allows parents to share the maternity leave and pay which previously applied to the mother only. As it is not particularly straight forward here is a summary of the main points to be considered.
SPL will be available for parents who either have a baby due on or after 5 April 2015 or for parents whose adoption placement takes place on or after 5 April 2015.
An employee must have at least 26 weeks’ continuous service prior to the date at the end of the 15th week before either the child’s due date or the date when the child is placed for adoption.
Additionally the parent’s partner must have either been employed or self-employed in Great Britain for a minimum of 26 weeks prior to these dates (not necessarily continuously) in the period of 66 weeks leading up to the week in which the child is due or matched for adoption. During at least 13 of those 26 weeks they must also have earned an average of £30 per week. It is also a requirement that at either the date of the birth of the child or the adoption placement, the parents must have the main responsibility of care for the child.
If the mother of the child wants to take SPL or to enable her eligible partner to take SPL she will need to bring her maternity leave to an end. This can be done by giving her employer eight weeks’ notice of her planned return and consequently returning to work or by giving a curtailment notice to her employer at least eight weeks before she wishes her maternity leave to end.
A curtailment notice must be given at least nine weeks before the 52 week maternity period is due to end as SPL can only be taken in weekly blocks. The mother can only revoke or withdraw her curtailment notice in limited circumstances.
How does a parent request SPL?
Both parents must agree what leave each of them will take. Neither parent can take SPL until the other signs a declaration giving their consent to the division of leave. In order to start a period of SPL, the employee must give their employer notice of their entitlement to and intention to take SPL (opt-in notice) and notice of the period(s) which they wish to take as SPL (booking notice or period of leave notice). These notices should be given at least 8 weeks before the leave is due to start. The opt-in notice will be non-binding, but should include the start and end dates for each period of leave.
In the following two weeks, the employer may then request a copy of the child’s birth certificate or documents notifying the primary adopter that the child is to be placed with them. The employer may also request the name and address of the other parent’s employer, but is not required to check whether the information provided is correct.
Arranging leave during the SPL period
The starting point for calculating an employee’s entitlement to SPL is 52 weeks. The two week compulsory maternity leave period must be deducted from this, leaving 50 weeks to be shared between the parents. Any period the mother spends on maternity leave must be deducted from the overall figure.
The employee can submit up to three requests to take or change their leave agreements. Leave must be taken in complete weeks and can either be taken in continuous periods or in discontinuous periods, for example one month on SPL and one month at work followed by another month on SPL. An employer must accept a request for continuous leave, but does not have to accept requests for discontinuous leave. There is a two week discussion period which starts on the date that the booking notice is given to decide whether the discontinuous periods of leave can be agreed by the employer.
If the employer rejects the discontinuous leave request, the employee will be able to take the period of leave requested in a single block. The employee has five days after the end of the two week discussion period in which to specify the date they will start their leave. This date must be not less than eight weeks from the date the original booking notice was given.
The employee can withdraw their request for discontinuous leave in the 2 weeks after the booking notice is given (on or before the 15th day) unless their employer has already agreed the leave period.
Notice to vary leave
Leave arrangements that have been notified can be varied by means of a notice to vary. Eight weeks’ notice must be given. A notice to vary will count towards the cap of 3 notifications to book leave.
The same process applies on an application to vary leave arrangements. Where the new period of leave is a continuous period, the employer must agree it. Where a discontinuous period is requested, a two week discussion period is required. After the discussion period, the employer can accept or refuse the leave requested or suggest an alternative arrangement.
If one parent’s employer agrees to the proposal but the other parent’s employer refuses the proposal, the parents will need to propose a revised pattern of leave which both their employers agree to.
An employer may wish to contact an employee on SPL. Like keeping in touch (KIT) days during maternity leave, an employee may work for up to 20 days during their SPL without bringing the SPL to an end. These are called SPLIT days. As with KIT days, an employer cannot insist that an employee attends work, nor can an employee insist on working. The time spent on SPLIT days does not extend the SPL period. Employees should be paid for SPLIT days at their usual rate.
In preparation for the introduction of SPL employers should consider implementing a SPL policy to assist with managing such requests and providing employees with guidance on the process to be followed.