Shared Parental Leave back in the Limelight

On Monday, the Government launched a campaign to promote Shared Parental Leave (SPL) and Shared Parental Pay (ShPP) after a low take-up of the policy.

The campaign will be backed by a £1.5 million investment in an attempt to encourage couples to ‘share the joy’ of parenting.

The Government will use digital advertising and social media as well as adverts in train stations and on commuter routes. It has also launched a new website to provide further information and guidance.

Shared Parental Leave and Pay

Figures published by the Department for Business, Energy and Industrial Strategy state that since the regulations came into force on the 1st December 2014 of around 285,000 couples who are eligible to take advantage of Shared Parental Leave and Pay, potentially only 2% have used it.Shared Parental Leave

Business minister Andrew Griffiths said: “Shared parental leave gives choice to families. Dads and partners don’t have to miss out on their baby’s first step, word or giggle – they can share the childcare, and share the joy.”

Employers can reap the benefits too. It is widely accepted that flexibility in work is proven to create a happier, loyal and more productive workforce.”

Providing truly flexible employment options is a key part of the Industrial Strategy, the Government’s long-term plan to build a Britain fit for the future by helping businesses creates better, higher-paying jobs in every part of the UK.”

Under shared parental leave, mothers can commit to ending their maternity leave and pay at a certain date, and their partner can share the untaken balance of leave. Parents can share up to 50 weeks of leave, or share up to six months’ off together.

SPL & ShPP Key Facts

  • Employees may be able entitled to SPL and ShPP if they’ve had a baby or adopted a child.
  • Employees can start SPL if they’re eligible and they or their partner end their maternity or adoption leave or pay early. The remaining leave will be available as SPL. The remaining pay may be available as ShPP.

In addition:

  • Employees can take SPL in up to 3 separate blocks. They can also share the leave with their partner if they’re also eligible. Parents can choose how much of the SPL each of them will take.
  • SPL and ShPP must be taken between the child’s birth and first birthday (or within 1 year of adoption).
  • SPL and ShPP are only available in England, Scotland and Wales.

Shared Parental Leave (SPL)

To qualify for SPL an employee must have shared responsibility for the child with one of the following:

  • Their husband, wife, civil partner or joint adopter.
  • The child’s other parent.
  • Their partner (if they live with them).

An employee or their partner must be eligible for Statutory Maternity Pay (SMP) or leave, Statutory Adoption Pay (SAP) or leave or Maternity Allowance (MA).

They must also:

  • Have worked for their employer continuously for at least 26 weeks by the end of the 15th week before the Expected Week of Childbirth (EWC), or the date they are matched with their adopted child, this is known as the ‘Qualifying Week’.
  • Continue to be employed by their employer whilst taking SPL
  • Provide their employer with the correct notice including a declaration that their partner meets the employment and income requirements which provides eligibility to the employee to qualify for SPL.

Shared Parental Pay (ShPP)

To qualify for ShPP an individual must be an employee and one of the following applies:

  • They’re eligible for SMP or SAP.
  • They’re eligible for Statutory Paternity Pay(SPP) and their partner is eligible for SMP, MA or SAP.

An individual can also qualify for ShPP if they’re a worker and they’re eligible for SMP or SPP.

An employer can refuse SPL or ShPP if the employee doesn’t meet the qualifying criteria. The employer is legally obliged to inform the employee the reason for refusing ShPP but an employer does not have to give a reason for refusing SPL.Shared Parental Leave

What an Employee is Entitled to

If an employee, or worker for ShPP purposes, meets the above qualifying criteria and they or their partner end maternity or adoption leave and pay, or Maternity Allowance early, then they can:

  • Take the rest of the remainder of the 52 weeks entitlement of leave (but only up to a maximum of 50 weeks) as SPL.
  • Take the remainder of the 39 weeks of pay (but only up to a maximum of 37 weeks) as ShPP.

It is worth noting that a mother must take a minimum of 2 weeks’ maternity leave following the birth or 4 if she works in a factory. Where adoption is concerned the adoptive parent eligible for SAP must take at least 2 weeks’ adoption leave which can be taken from the day of the placement, or up to 14 days before the placement starts.

ShPP is paid at the rate of £140.98 (rising to £145.18 in April 2018) a week or 90% of an employee’s average weekly earnings, whichever is lower and is paid by the employer.

There seems to be a common myth that an employee has to repay ShPP if they do not return to work; this is simply not the case!Shared Parental Leave

Employers can claim back between 92% and 103% of ShPP from HM Revenue and Customs (HMRC) depending on the employers Class 1 National Insurance Contributions.

An employer is required by law to retain records for the HMRC which must include:

  • The evidence provided by an employee to demonstrate eligibility for ShPP.
  • The date ShPP commenced.
  • The employers ShPP payments, inclusive of dates.
  • Details of any ShPP the employer has reclaimed.
  • Any weeks the employer didn’t pay and the reasons why.

An employer must keep these records for at least 3 years from the end of the tax year they relate to.

If an employer offers ‘contractual’ maternity pay that is above the statutory minimum payment rate, it does not have to offer contractual shared parental pay. However, if an employer offers contractual shared parental pay it should be offered to men and women taking shared parental leave in order to avoid a potential claim for discrimination.

Beginning Shared Parental Leave

In order for SPL to begin, the mother or adopter must do one of the following:

  • End their maternity or adoption leave by returning to work.
  • Give their employer ‘binding notice’ of the date when they’ll end their maternity or adoption leave.
  • End SMP or MA if they’re not entitled to maternity leave, not being entitled to leave would normally apply to an agency worker or self-employed person.

A mother or adopter must give their employer at least 8 weeks’ notice to end their SMP or SAP, or inform Jobcentre Plus to end her MA.Shared Parental Leave

SPL can start for the partner while the mother or adopter is still on maternity or adoption leave as long as the mother has given binding notice to end her leave, or pay if she’s not entitled to leave.

Providing Notice

An employee must give their employer written notice if they wish to take advantage of SPL or ShPP. An employee must provide at least 8 weeks’ notice of any leave they wish to take. If the child is born more than 8 weeks early then a shorter notice period can be accepted.

After an employer receives written notice it can request a copy of the child’s birth certificate and the name and address of their partner’s employer. The employer has 14 days to request this information following receipt of written notice the employee then has a further 14 days to provide it.

The mother or adopter may be able to change their decision to end maternity or adoption leave early if both the planned end date hasn’t passed and they haven’t already returned to work, but one of the following must also apply:

  • The employee’s partner has passed away
  • Less than 6 weeks has passed since the birth and the mother had provided notice before the birth.
  • It transpires that during the 8 week notice period that neither partner is eligible for either SPL or ShPP.

SPLIT Days

An employee can work up to 20 days during SPL without it affecting shared leave or pay. These are called ‘shared parental leave in touch days’ or SPLIT days.

SPLIT days are optional, both the employee and employer must agree to them. It is advisable though that an employer can provide a good reason for not agreeing to SPLIT days as an employee may utilise the non-agreement as evidence of unfair treatment or discrimination if there was ever a dispute.

Any agreed days of work must be paid at the employee’s normal contractual rate of pay.

Blocks of leave

An employee taking SPL can split their remaining leave entitlement into 3 separate blocks instead of taking it all at once, even if they choose not to share the leave with their partner. An employee must give their employer at least 8 weeks’ notice before a block of leave begins.

Shared Parental Leave

Both parents are entitled to take their leave at the same time as each other or at different times.

An employer cannot turn down a request for a block of leave if the employee is eligible and provides the employer with the right notice.

Splitting blocks

If an employer agrees, the employee can split a block of leave into shorter periods of at least a week.

An employer does not have to agree to the employee splitting the block of leave into shorter periods but it would be a prudent approach to consider wherever possible.

Important things to Consider as an Employer

It is crucial as an employer that you manage any period of leave correctly and that you are observant of your employee’s rights, a failure to do so may leave your business exposed and at risk of expensive litigation, for example:

  • An employee on shared parental leave has preferential redeployment rights if, during a period of leave because of a redundancy situation, it is not reasonably practicable for the employer to continue to employ the employee under his or her existing contract of employment.
  • An employee has the right not to be subjected to a detriment because, among other things, he or she has taken or sought to take, shared parental leave, or the employer believed that he or she was likely to take shared parental leave. The dismissal of an employee in these circumstances is automatically unfair.

It is important that your business has taken into consideration possible unexpected requests for leave and that it has the correct support internally or externally to help manage requests and periods of leave. Although it is impossible to say if the government’s campaign will increase the uptake of SPP and ShPP it would be a prudent exercise to make sure your business is prepared to avoid any nasty shocks.

Review your Business Policies

If your business has an Employee Handbook then review the policies that relate to the discussed topic, related policies would most likely detail information on:

  • Maternity Leave and Pay
  • Paternity Leave and Pay
  • Shared Parental Leave and Pay
  • Equality and Diversity

PeoplePointHR can help you review its existing business policies or implement new policies; in addition, we are able to provide guidance and support on how to act on them.

If you require more information on this topic or how we can help with any HR and Employment Law issue please do get in touch with the PeoplePointHR team on 0330 555 2555.