Anna Fletcher
Partner
Article
13
The reshaping of family-friendly leave is here! We have only eight weeks to go before Shared Parental Leave (SPL) will fully join the suite of family friendly leave to sit along-side maternity, paternity, adoption and parental leave, for births/placements for adoption expected on or after 5 April. Are you ready?
Although SPL came into force on 1 December last year its immediate effects were limited, as SPL only applies to parents of children due to be born/adopted on or after 5 April. This date is fast approaching but don't panic. There is still time to get ready.
Employers should be:
Below is a summary of the new regime for those unfamiliar with its complexities and the extent of the changes.
To re-cap, the new regulations encourage the sharing of "family" leave between working parents. Employees can opt into the new system of shared parental leave for children due to be born/placed for adoption on or after 5 April 2015. Given that the new system relates to an expected due date and taking into account the age old dilemma of pinpointing precisely when a baby will make its entrance into the world, there is a real possibility of parents being able to opt into this system ahead of April.
In very broad terms, mothers and adopters can choose to curtail maternity and adoption leave to opt in to shared parental leave. The little-used right to additional paternity leave will be abolished on 5 April 2015. Shared parental leave doesn't replace existing maternity and adoption leave rights. Instead it enables mothers/adopters to elect to convert a portion of that leave, so that up to 50 weeks' leave and 37 weeks' pay can be shared between both parents.
The timing for taking of the leave will also be more flexible. Parents can apply for continuous or discontinuous periods of leave which they can take at the same time or separately up to the child's first birthday/anniversary of placement.
When a period of continuous leave is requested it cannot be refused. Discontinuous periods of leave are possible, but only where agreement is reached with the employer.
Getting to grips with the new right isn't exactly easy. Akin to the most complicated flat pack baby furniture instructions, employers need to understand how to fit together:
*mother/primary adopter & father/partner
Broadly, working parents who share the main responsibility for caring for their child are eligible.
The conditions for taking Shared Parental Leave (SPL):
The conditions for receiving Statutory Shared Parental Pay (SSPP):
In addition to the SPL requirement:
The above eligibility criteria are potentially wider than it may first appear. The person claiming SPL/SSPP must be an employee in a relationship where both parents are working. However, both parents 'working' does not necessarily mean both parents are 'employees'. Eligibility is not limited to where both parents are employees. For example, an employed father may, in some circumstances, qualify for SPL where the mother is self-employed and in receipt of maternity allowance.
The notification requirements governing the content and timing for the various notices are prescriptive. For example, the curtailment notice must state the date on which the mother's SML is to end. This must be at least eight weeks after the date the notice is given and at least one day after the end of the compulsory maternity leave period.
As regards the entitlement and booking notices, the initial requirement is for the employee to submit a non-binding notice that he or she intends to take shared parental leave. This is then followed by a booking notice confirming full details of the request, including the amount of and pattern of proposed leave. The booking notice may be given at the same time as or after the entitlement notice, but cannot validly be given before. Add to the mix the rules as to variation or revocation of the notices and it's clear employees are likely to need guidance on the system and how to make a request.
The potential flexibility in the pattern the leave may be taken is vast. Parents can apply to be on leave at the same time or separately up to the child's first birthday/anniversary of placement. Provided the mother has validly curtailed her maternity leave for a future date, the mother could potentially still be on maternity leave while the father is simultaneously on shared parental leave.
When a period of continuous leave is requested it cannot be refused. Discontinuous periods of leave are possible, but only where agreement is reached with the employer. The number of booking/variation notices is limited to three, subject to certain exceptions. For instance, a variation notice as a result of the child being born sooner or later than the expected week of childbirth will not count towards the limit.
For couples seeking very flexible arrangements there is good news and bad news. The ability for the employee and employer to agree discontinuous periods of leave together with up to 20 SPLIT days opens the possibility for some very creative leave patterns to be agreed.
On the other hand, reaching employee and employer agreement x 2 for discontinuous periods of leave may prove difficult. While one parent's employer may agree to be flexible the other parent's employer may not. The parent who has agreed a flexible leave pattern may have to go back and vary the agreement where their partner's employer is unable to agree to the pattern sought.
Employers need to understand the booking and variation notice requirements as whether an arrangement will work will in many cases involve the mother and her employer's agreement dovetailing with the father and his employer's agreement.
One thing is clear, the 50-week period within which SPL can be taken cannot be extended. Any SPL that is not taken within that period will be lost.
The default position in relation to SSPP is that it is paid at the flat statutory rate - currently £138.18 and rising to £139.58 per week from 5 April. But what is the position for employers who offer enhanced contractual maternity pay?
The Government's view is that there is no legal requirement for employers to offer corresponding enhancements to shared parental pay. Employers are free to offer more generous enhanced arrangements if they wish, but not obliged. Whether an employer who fails to match maternity pay enhancements will face a successful discrimination claim is yet to be seen. It is likely to turn on the particular circumstances of the employer and the reasons for adopting the policy in question.
Women who are entitled to enhanced contractual maternity pay need to be clear about their contractual position. A woman could find herself financially worse off when converting from maternity leave attracting contractual pay to statutory shared parental leave and pay. What is clear, is that an employer cannot offer enhanced contractual shared parental pay to mothers only.If an employer chooses to offer enhanced contractual shared parental pay it must offer it to both mothers and fathers.
A survey published in January by the Department for Business, Innovation and Skills (BIS) suggests take up may be higher than for the soon to be repealed additional paternity leave. Of the 2,100 people surveyed, 53% of respondents thought that childcare should be shared equally between parents with a higher percentage of men than women (56% compared with 50%) taking this view. Of those considering parenthood in the future, 83% said they would consider taking SPL.
Will SPL take up rates prove higher than under the outgoing additional paternity leave system? The potential flexibility of when the leave may be taken, including concurrently, may make the leave an attractive choice for many. The key will no doubt be financial viability for the family. As more employers offer enhanced contractual pay to those taking SPL, mirroring enhancements already offered in respect of maternity leave, we may indeed see increased take up. Only time will tell.
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