What is Shared Parental Leave?
Shared Parental Leave refers to the option for parents to share 50 weeks’ leave and 37 weeks’ pay when they have a child.
For example, SPL allows parents the choice to be at home together following birth of adoption or to stagger leave so one parent is always at home in the first year.
Shared parental leave is designed to provide families with the choice and flexibility to manage childcare in a way that suits their family circumstances.
Statutory rules apply to SPL, but many employers are developing their own policies and contractual provisions to offer enhanced flexibility for employees following the birth or adoption of a child. For example, SPL can be taken in blocks of leave. Three blocks per parent is standard but employers can offer more in their SPL policies.
Who is eligible for shared parental leave?
To take shared parental leave an employee must share responsibility for a child with either:
- their husband, wife, civil partner or joint adopter
- the child’s other parent
- their partner (they must live with them)
Either the employee or their partner must also qualify for maternity leave or pay, adoption leave or pay or maternity allowance.
In addition, they must still be employed when taking the SPL and they must have been employed continuously for at least 26 weeks up to the 15th week before the baby is due to be born.
They must also give the employer the relevant notice – this includes a declaration that their partner meets requirements around income/employment that allow the employee to get SPL.
The income requirements state that in the 66 weeks preceding the child’s due date or adoption matching date, the person must have worked for a minimum of 26 weeks and they must have earned a minimum of £30 a week on average in any 13 weeks.
In some cases only one parent will be eligible – a self-employed parent, for example, will not be eligible to take SPL but if they pass the employment and earnings requirements their partner may still qualify.
If both the parents qualify, they are jointly entitled to SPL and they can decide how to divide the leave once the mother/adopter has made the decision to curtail their maternity or adoptive leave.
Note that the employer is not required to verify that the partner meets the employment and earnings test and does not conduct checks in relation to the other parent. The employer may, however, ask the employee for the name and address of the other parent’s employer, if they are employed.
Shared parental leave pay
Shared parental leave pay is £156.66 a week or 90% of an employee’s average weekly earnings, whichever is lower. This is the same rate as statutory maternity pay, although during the first 6 weeks SMP is paid at 90% of the employee’s salary.
SPL pay is paid by the employer in the same way that other statutory payments (such as statutory maternity pay or ordinary and additional statutory paternity pay) are paid. Employers can reclaim by means of underpayments of national insurance contributions to HMRC either 92% or 103% of the payment, depending on the size of the employer’s national insurance contribution.
For SPL to be applicable, the mother/adopter must cut short their maternity/adoption entitlement before they have used up their 39 weeks statutory allowance. For example, if she stops her maternity entitlement at 31 weeks, then the eight weeks remaining can be used as shared parental pay instead.
It should be noted that all mothers must take two weeks compulsory maternity leave following birth as a minimum, or four weeks if the mother works in a factory.
Shared parental leave policy
Employers should have in place an effective SPL policy which states clearly what the organisation provides under SPL, what the employee is entitled to and what the employee’s obligations are in respect of any entitlements. The policy should also make clear the process the employee needs to follow to request SPL.
Firstly, it ensures the employer has covered all legal bases and has procedures in place that comply with the law around shared parental leave.
Secondly, it makes the process transparent and setting out the rules for applying and taking leave will make the process smoother for both employer and employee. It will lessen the chances of disputes and ensure the process is efficient for HR staff and managers.
Finally, it signifies the employer takes staff rights and wellbeing seriously. A fair and robust parental leave policy can help with recruitment, retaining current staff and positions the employee as forward-thinking and family-friendly. Many employers choose to offer enhanced maternity rights and organisations want to be seen as progressive and future-focused could consider mirroring these maternity enhancements with their SPL policies.
Importantly, employees’ rights under statute and contract are protected during SPL. Likewise, they remain bound by the terms and conditions placed on them under their contract of employment.
Employees taking SPL must not be subject to adverse treatment or unfair dismissal relating to their SPL. Employees facing redundancy during SPL have the same rights as those on maternity leave, and should be offered a suitable alternative role if available.
Opting in to shared parental leave
A mother entitled to maternity leave has to bring forward the date on which her maternity leave period ends in order to create shared parental leave. The amount of SPL available is the number of untaken weeks of maternity leave.
Under the SPL rules, mothers are only permitted to opt in to shared parental leave if they bring forward the end of (‘curtail’) their maternity leave, or their statutory maternity pay or maternity allowance. This is done by notifying their employer that they wish to curtail their maternity leave, pay or allowance, or by returning to work.
Curtailment of maternity leave means bringing forward the date on which the mother’s maternity leave period ends before the whole entitlement of 52 weeks of maternity leave is taken.
Curtailment of maternity pay means cutting short the mother’s entitlement to maternity pay before 39 weeks of that pay has been taken.
Curtailment of maternity allowance means cutting short the mother’s entitlement to maternity allowance before 39 weeks of that allowance has been taken.
By law, if an employee wants to take SPL they must inform their employer by giving at least eight weeks’ notice before they intend to start taking any leave, and follow the rules for starting SPL.
Each parent will need to give their employer formal notice of when they intend to take leave. The employee should:
- Specify how much shared parental leave is available to them and the other parent.
- State how much leave each of them intends to take.
- Provide written consent of the other parent to the division of the leave.
A curtailment notice is only effective if the mother also gives her employer at the same time a notice or declaration that she or her partner/the child’s father will take SPL or pay.
The maternity leave period will come to an end on the date specified in the curtailment notice, regardless of whether or not the mother returns to work on that date.
On returning to work, maternity leave cannot be restarted. Once a curtailment notice has been given, it will be binding, except in limited circumstances:
- if the curtailment notice was submitted before birth, it can be revoked in the 6 weeks immediately following birth; or
- if the other parent dies; or
- if it transpires that neither of the parents was entitled to SPL or pay.
Once a mother has given a curtailment notice, the balance of her maternity leave that is untaken on the date her maternity leave period ends will be the number of weeks of shared parental leave available.
The other parent will also need to give their employer 8 weeks’ notice of any shared parental leave that they want to take.
For adoption, the same process and rules apply.
The employee also has to confirm to the employer that they are sharing the care of the child with their partner and that their partner satisfies the employment and earnings test.
Employees who deliberately defraud the system by claiming more than they are entitled to could face a significant financial penalty and could be required to pay back any amounts that they have over claimed. Employers will not be liable in the event of their employee claiming more leave than they are entitled to and we do not expect them to perform detailed checks.
Before a formal request is made, employers are advised to encourage employees to have an informal discussion with their manager first. This can help to raise and discuss any initial queries and helps to make the employer aware that the request will be forthcoming.
Once the request has been received, you should acknowledge receipt.
If an employee requests continuous blocks of shared parental leave the employer is obliged to agree it.
Some employees may want to split their blocks of leave into shorter periods. If an employer agrees then blocks can be split into periods of at least a week. An employee, for example, could work every other week during a 12-week period and only use 6 weeks of shared parental leave. An employer is not obliged to agree to employees breaking the leave into shorter periods so it is advised that SPL is an ongoing discussion between employee and employer to avoid disputes.
As shared parental leave can be taken in three blocks, each parent can give their employer three separate notices that they want to book leave.
Record keeping
Employers should record the cumulative weeks taken as shared parental leave to ensure the entitlement is not exceeded.
If required, you must be able to show evidence of the date shared parental leave commenced, payments given to the employee for shared parental leave, any payments reclaimed, details of any weeks payment was not given.
You should also keep on file forms requesting shared parental leave and make sure these records are kept for at least three years.
Need assistance?
Many see SPL as offering parents extra flexibility and allowing them to share the care responsibilities of the child in their first year in a way that better suits their family set-up and circumstances.
Statistics show that employees strongly support shared parental leave and see it as a positive reflection on employers. Strong shared parental leave policies play a role in attracting talent and worker satisfaction. Yet the take up of shared parental leave remains relatively low since its introduction.
Many see enhanced shared parental pay as being key in increasing take up and more and more employers are choosing to enhance the shared parental leave pay they offer employees. It currently stands that employers who offer enhanced parental pay are twice as likely to receive requests for shared parental leave.
If you are considering creating a shared parental leave policy or updating your current procedures you may benefit from the support of an employment law specialist. Expert help can ensure your policy is both legally compliant and strikes a balance between employer well-being and business objectives.
DavidsonMorris are experienced employment law specialists offering guidance and support to employers.
If you have a question or need help with any aspect of parental leave, including SPL, maternity and paternity, contact us.
