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Shared Parental Leave - The Basic Principles
The new Shared Parental Leave (“SPL”) regime comes into force on 1 December 2014. For the first time, parents of babies will be able to take leave together in the first year of their child’s life. Many employers are unclear about how SPL will work in practice. We introduce the principles that underpin the new regime.
Who can take SPL?
SPL can be taken by parents, adoptive parents or carers of children who are due to be born or placed for adoption on or after 5 April 2015.
Employers should consider putting in place appropriate letters and policies now. The new regime is going to apply to all employees who find out they will become parents or have caring responsibilities from now onwards. They will want to understand their entitlement to take leave. Please see our article for further guidance on the immediate steps employers should be taking.
Are parents or carers obliged to take SPL?
No. The default position remains that on the birth of a child the mother will be entitled to 52 weeks of maternity leave (39 weeks’ paid under the statutory scheme). Additional paternity leave and pay arrangements will be abolished when SPL becomes available. This means that the only statutory entitlement the child’s second parent or carer has to take leave to care for the child is ordinary paternity leave and pay; unless they choose to engage with the new SPL scheme.
Calculating the entitlement to SPL?
A mother can elect to change from maternity leave to SPL by ending her maternity leave early and returning to work; or by serving notice of “curtailment”. If she does so, this will allow the father (or her partner) to take shared parental leave using the balance of the mother’s entitlement. SPL can be taken either by parents or carers together or by one alone. The total amount of SPL that can be taken by either or both parents is calculated by deducting the length of maternity leave taken before the SPL period starts from a total of 52 weeks.
How to take SPL?
Any employee who intends to take SPL needs to give his/her employer at least eight weeks’ notice of the entitlement and intention to take SPL. Any notice that requests one continuous period of SPL must be accepted. There is no ability to refuse a request for business reasons. If the notice requests discontinuous periods of leave, the employer has two weeks to accept the request, propose alternatives or refuse it. If the employer refuses the periods requested, the employee may choose to take the total amount of leave requested as a continuous period or withdraw their original notice. An employee may serve up to three notices.
What special protection applies to those who take SPL?
As with maternity leave protections, the SPL Regulations provide for special status, giving additional redundancy protection to those who opt to take SPL; the right to return to work after a period of SPL; and protection from being subject to a detriment or being dismissed for taking or seeking to take SPL.
What rate of pay should be used?
Unlike Statutory Maternity Pay there is no requirement to pay the first six weeks’ of SPL at 90% of salary. Those employers who pay enhanced maternity pay should consider whether to enhance the amounts paid to those who take SPL. We consider this further in our article on the potential risk areas for businesses.
Where can I get more information?
ACAS have published their documents on Shared Parental Leave, including a good practice guide, summary process, template policy and letters. These are available here.
Alternatively, speak to your usual Fox Williams contact in the HRlaw team.