Shared Parental Leave
10 Tricky Questions
With less than two months to go have you got Shared Parental Leave covered? Do you know what checks you need to make on your employee’s partner or how to treat an employee on Shared Parental Leave during a redundancy programme? Test your knowledge with our 10 tricky questions.
1. My employee’s baby is due on 4 April. Will she be entitled to SPL if the baby is born late?
No. SPL is only available to employees whose babies are due on or after 5 April. The due date will be confirmed in the employee’s MATB1 form. However, if your employee’s baby is due on 8 April but born a week early, that employee will be entitled to SPL (assuming they satisfy the eligibility criteria).
The same applies where your employee adopts a child. The child must be placed by the adoption agency on or after 5 April.
2. I have had an application for SPL from my employee. Do I need to check that the information about her partner is correct?
You are not required to verify the information given to you about your employee’s partner. You can however request details of the partner’s employer’s name and address and make contact with them if you wish.
3. My employee wants to alternate care of his baby with his wife and has asked to take August, October and December off work as SPL. This will be hugely disruptive to our business. Can I refuse his request?
If an employee makes a request for discontinuous leave such as this there will be a two-week discussion period in which you can decide whether or not to accept the request. You can reject your employee’s proposed leave pattern during this two week period. If you do, the employee has a choice: they can either take the entire period of leave in one block (in this case, three months starting in August); or they can withdraw their leave application. As long as they withdraw their leave application before the end of the two-week discussion period, it will not count as one of their three leave notices.
If your employee decides to withdraw their leave notice, they could then put in three separate notices requesting a month of SPL in each notice.
So the answer to the question is yes, you can refuse the request. But, the employee can achieve the same result if they make new requests.
4. One of my employees has told me that she would like to end her maternity leave early enabling her and her partner to take SPL. I am delighted that she has decided to return to work early but during the two-week discussion period her partner’s employer rejected the proposed pattern of leave.
Your employee can withdraw her leave application before the end of the two-week discussion period without any penalty. If she does so after the end of the two-week discussion period, it will count as one of her three leave requests.
This highlights why it is a good idea to have a discussion with your employee as early as possible and suggest that her partner does the same with his employer.
5. I agreed a SPL arrangement with my employee before she went on maternity leave. She had her baby a month ago and has now decided that she would prefer to remain on maternity leave for the entire year. What can I do?
A mother who decides to curtail her maternity leave by returning to work or moving onto SPL can only change her mind in very limited circumstances. One of those circumstances is where, as in this case, the mother gives notice before the birth and seeks to revoke the notice in the six weeks after the birth. There is nothing you can do to stop this. The mother will remain on maternity leave and can take her full entitlement (52 weeks). Alternatively, she may decide to take up SPL later during the year. She would need to request a new period of SPL in the usual way.
6. I am in the middle of a redundancy programme. Is there anything special I need to do for my employees on SPL?
You will need to include any employees on SPL in your consultation process. If an employee is made redundant whilst on SPL, they are entitled to be offered a suitable alternative vacancy if one arises. This is the same protection currently available to women who are made redundant whilst on maternity leave.
7. One of my employees on SPL has just called in to say that they are sick and are likely to be unwell and needing treatment for some time. What should I do?
The purpose of SPL is to allow the employee to care for the child. If an employee on SPL becomes too ill to care for their child, they should inform you immediately. They will no longer be entitled to be on SPL and will convert to sick leave. The employee will also lose entitlement to shared parental pay. They may be entitled to statutory sick pay and, if you provide it, occupational sick pay. If you have already paid the employee shared parental pay for the relevant week, you may be able to recover the overpayment from the employee as overpayment of wages.
8. One of my employees has put in a request for six months SPL. What happens to their holiday entitlement for this year?
The simple answer is that it remains the same. As with maternity leave, an employee on SPL continues to accrue holiday whilst they are on leave. So, if your employee spends six months of the year on SPL and six months at work, they will still have their full annual leave entitlement. It is a good idea to talk to your employee about their plans regarding leave before they return from SPL. For example, they may want to add a period of holiday to the end of their SPL and this may be less disruptive to your business.
9. We currently offer our employees on maternity leave enhanced maternity pay. Do we have to do the same for employees on SPL?
The government has expressed hope that employers will extend enhanced maternity pay packages to cover SPL, but there is no requirement to do so. Employers who wish to embrace the new family friendly regime, may well mirror their enhanced maternity pay provisions in a new SPL scheme. However, others may be concerned about the potential increased costs of doing so.
The government guidance confirms that there is no legal requirement for companies to create enhanced SPL schemes. However, an enhanced maternity pay scheme can only be offered to a woman on maternity leave. If the scheme is extended to a mother on SPL, it could constitute sex discrimination if the same scheme is not offered to male employees on SPL.
Employers with enhanced maternity pay schemes therefore need to consider whether they wish to extend the enhanced payments to their employees on SPL, be they male or female.
10. What happens when my employee returns to work after SPL?
Whether an employee has the right to return to the same job after a period of SPL depends on how long they are absent from work. For these purposes, any period spent on maternity leave, paternity leave, adoption leave and SPL is considered in aggregate. If the total period of leave is 26 weeks or less, the employee has the right to return to the same job. Where the total period of leave exceeds 26 weeks, the employee has the right to return to the same job unless that is not reasonably practicable, in which case, they should be offered a suitable alternative role.
Time spent on unpaid parental leave is excluded from the calculation.