Five key things about the new parental leave system
Parents now have unprecedented flexibility over who should take time off work to look after their new arrival. Elouisa Crichton explains five key things you need to know about the new system.
A new system of shared parental leave (SPL) will be available to parents of children due or placed for adoption from 5 April 2015. It will be important to understand this measure and what it may mean for you, and your organisation.
1. Leave can be shared
SPL will allow eligible couples to share up to 50 weeks of leave during the child's first year. Mothers still need to take a minimum of two weeks' maternity leave immediately after birth but can then shorten the remainder of their maternity leave. Any untaken portion of maternity leave can be shared between the parents. The mother can choose to share leave with the father or with her partner provided they will be caring for the child. The parents will need to meet certain qualifying criteria in respect of earnings and length of service.
2. Parents can be off work at the same time
Parents can be off work, at the same time or separately, during the baby's first year. For example, the mother could be on maternity leave while the father is on SPL or both parents could take SPL
at the same time. The key is that the total combined period of maternity leave and SPL must not exceed 52 weeks. Partners will still have the exclusive right to take two weeks' paternity leave, which must be taken before SPL or the right to take paternity leave will be lost.
3. Shared parental leave can be taken in blocks
Unlike maternity or paternity leave, where a return to work extinguishes the entitlement to take further leave, employees can move in and out of SPL. They have a right to take three separate blocks of SPL with returns to work in between. Businesses will need to find ways to manage any disruption caused by blocks of leave. Employers can choose to be more flexible and, for example, could agree to a month-on, month-off pattern of leave. We may see SPL being used like additional holiday entitlement with employees taking shorter spells of leave. Employees can also use up to 20 "shared parental leave in touch" ("SPLIT") days to attend work or training events during SPL.
4. Pay can be shared
Shared parental pay will be payable during SPL for up to 37 weeks (per couple), less any period of maternity pay which the mother has received. The statutory rate of pay from 5 April 2015 will be £139.58 (the same as the flat rate of maternity pay). The availability of any enhanced pay will be a key factor when parents are deciding who should take leave. We expect that employers who choose to offer enhanced pay during SPL may see a higher than average uptake of SPL amongst their workforce.
If an employer currently provides enhanced maternity pay, the Government has said there is no requirement to also offer enhanced shared parental pay. However, there is precedent from the European Court that suggests offering different benefits could amount to sex discrimination. Therefore, businesses that choose not to mirror during SPL any enhancements that are currently offered for employees on maternity leave could be at risk of claims.
5. Employees are protected
As with employees on maternity leave, employees who request or take SPL are protected in a number of ways. Their contractual terms (except those relating to pay) must remain in force during SPL. They have a right to return to the same job after taking up to 26 weeks' SPL or a suitable alternative after 26 or more weeks' leave. If there is a redundancy situation, then an employee on SPL is entitled to first refusal on suitable alternative roles. Also, the rules protect the employee from being treated detrimentally as a result of requesting SPL. If employers react less favourably to a man asking for SPL than they would to a woman taking maternity leave or SPL, there could be a risk of sex discrimination claims.
The best way to prepare for SPL is to become familiar with the rules and ensure that suitable policies are in place, as the first requests will be arriving any day now.
Elouisa Crichton is a Solicitor with Shepherd and Wedderburn LLP.