New Right to Shared Parental Leave – Babies Due On or After 5 April 2015

Working parents can now take advantage of the added flexibility provided by the Shared Parental Leave Regulations 2014 (“Regulations”), which are set to revolutionise the way new parents will take leave in the first year of the birth of their child.

The Regulations, which mark a significant change in the law, allow parents to share leave for a year after their child is born or adopted. Due to apply to babies born or adopted on or after 5 April 2015, it is expected that employers may already have started receiving requests for shared parental leave.

Pam Sidhu, Head of Employment at The Wilkes Partnership, comments: “Official surveys indicate that there will be a higher take up rate than first thought. For example, a recent BIS survey indicates that 4 out of 5 potential parents would ‘consider’ taking shared parental leave.  Another survey indicates that men are in fact keener on the idea than women. It is imperative employers understand the new regulations and are prepared to deal with requests for shared parental leave”.

How do the Regulations operate?

Here is a summary of how they operate.

• The Regulations allow “eligible” parents to share a pot of leave between them, which essentially comprises of 50 weeks of leave and 37 weeks statutory shared parental pay.
• “Eligible” mothers are those employed continuously for 26 weeks at the end of the 15th week before their due date, and remain employed while they take the leave.
• Mothers must share the main responsibility for the care of their child with the other parent (i.e. the child’s father or mother’s partner), who does not need to be an employee, but must satisfy the “employment and earnings test” in order to qualify. This test requires the other parent to have worked for at least 26 weeks of the period of 66 weeks leading up to the due date of childbirth (or placement for adoption), and have weekly earnings of not less than £30 per week in 13 of those 66 weeks.
• Unlike the current provisions on maternity leave, the pot of shared leave can be taken either continuously, or in up to three blocks if elected. An employee who intends to take shared parental leave must inform their employer of their intention to do so at least 8 weeks before their first intended period of leave.
• An employer must accept a request to take a continuous block of leave, but has the option to accept, refuse, or suggest alternatives if the employee intends to take a discontinuous block of leave. A discontinuous block of leave is where the employee requests to return to work between periods of leave (for example, an arrangement where the employee will take six weeks of shared parental leave and work every other week for a period of three months).

Note that the Regulations do not replace the current law on maternity, paternity and adoption leave. However, an eligible mother or adopter may now choose to reduce their maternity/adoption leave and opt in to shared parental leave. Shared parental leave is entirely optional. In order to take advantage of shared parental leave (and the additional flexibility it affords), a mother must still take a minimum of two weeks’ weeks’ compulsory maternity leave (or four weeks, if she performs manual work in a factory) following the birth of her child. A period of shared parental leave will therefore not commence until the expiry of this period.

What is the effect of the Regulations on employers?

Pam Sidhu comments: “The Regulations, which are by no means straightforward, will undoubtedly cause an administrative headache for employers who deal with an already complicated regime of family leave rights. Employers need to consider reviewing and updating their current policies, procedures and staff handbooks to reflect the changes implemented by the Regulations. We have assisted many of our clients in substantially reviewing their policies and advising on the new regime.”

Pam adds: “In practical terms, the Regulations mean less certainty for employers in terms of understanding which of their employees (male or female) will continue work following a birth or adoption. Additionally, the option to taking leave in blocks is likely to prove to be the most challenging aspect of the new regime, which will add to employers’ already difficult experience of keeping jobs open for those on maternity leave, and potentially require them to do so on a stop start basis. “

If you would like to discuss any issue or query arising from this update please contact Pam Sidhu or any member of the Employment team. Alternatively email us at [email protected]