A new system of Shared Parental Leave (SPL) means parents with babies due on or after 5 April 2015, will be able to take time off together or independently, to care for their child. The concept is simple but the regulations governing the new system are complex and likely to be challenging for employers to administer. Here Emma Capper,?associate at legal firm?HillHofstetter, talks you through preparations for that first request.
The expectation os that Shared Parental Leave (SPL), which came into force in December 2014, will be more popular than the Additional Paternity Leave scheme. This is particularly the case amongst younger employees, where studies show fathers do want to be involved in the care of their children. The upshot is that employers need to familiarise themselves with what is one of the most ground breaking changes in the law for some time. Here’s the heads-up.
1. What is SPL?
The default position is that mothers can still take 52 weeks’ maternity leave and 39 weeks’ statutory maternity pay. However, as an alternative to this, parents can opt into the SPL system. The mother must still take the compulsory maternity leave period i.e. two weeks immediately following the child’s birth (or four weeks in a factory environment). Thereafter, the parents can share the remaining 50 weeks’ leave and 37 weeks’ pay.
SPL must be taken within 52 weeks of the child’s birth. Fathers are still entitled to up to two weeks Ordinary Paternity Leave, but the old entitlement of Additional Paternity Leave (for which there was never much take up) is being abolished. Adopters will have the same entitlement as other parents to SPL.
2. Who is entitled to it?
Parents have to satisfy a number of tests and provide employers with prescribed information before being entitled to take SPL. Effectively employees will “self-certify” that they meet the qualifying criteria. To qualify, the mother must be entitled to and have given notice to curtail her maternity leave. She must also share the main responsibility for caring for the child, with the child’s father or her partner. To be eligible for SPL a person must be an employee and pass the “continuity of earnings test”. The other parent must meet the “employment and earnings test”.
3. How does it work?
Leave can be taken either “Continuously” or “Discontinuously”. So, parents can either request one long block of leave or request several shorter blocks of leave with the employee returning to work in between the blocks of leave. Employers must agree to continuous leave requests but do not have to agree to discontinuous leave requests. For the latter, employers can seek to agree a pattern of leave with the employee which suits both the employee and the business.
4. What must an employer pay for SPL?
Employers are obliged to pay statutory shared parental pay, which is the lower of a prescribed rate, currently £138.18 per week, or 90% of a person’s normal weekly earnings. There is no obligation to enhance shared parental pay. However, there is an area of uncertainty in relation to whether, if an employer offers enhanced maternity pay, it will be discriminatory not to offer enhanced shared parental pay. This is likely to be subject to challenge at some point, but until then the position is unclear. Employers will need to think carefully about whether to enhance shared parental pay in the meantime and there are some options discussed below.
5. Can an employer contact an employee on SPL?
Yes. In the same way as maternity leave. Whereas there are “Keeping In Touch” (or KIT) days during maternity leave, there are “Shared Parental Leave In Touch” days (or SPLIT) days during SPL. An employee can undertake 20 SPLIT days without bringing their SPL to an end. There is however no obligation on an employee to undertake SPLIT days and there is no obligation on an employer to offer them, or agree to them. The rate of pay for such days is also a matter for agreement between the employer and employee.
6. What protections does the employee have during SPL?
Employees taking SPL are protected in the same way as women are protected during maternity leave. Normal terms and conditions, with the exception of pay, continue during SPL. Employees have the right to return to the same job if they are returning from SPL in 26 weeks or less. Employees have the right to return to the same job, or if that is not reasonably practicable, to a job that is suitable and appropriate, if they are returning from SPL after 26 weeks.
7. What do employers need to do to prepare?
The Regulations came into force in December 2014 and many employers are already receiving queries from employees about SPL. If you haven’t started to think about it yet, here are some practical steps you need to take to make sure your business is ready:
• Update Family Friendly Policies - make sure your Maternity Leave, Paternity Leave, Adoption Leave and Parental Leave policies reflect the new framework of family friendly rights.
• Create an SPL policy.
• Create template notices for employees to use in order to apply for SPL – because there are a number of notifications to be given by employees and they must include certain prescribed information, many employers are putting in place template forms for employees to use.
• Train your line managers! This is absolutely vital. SPL challenges the traditional stereotypes of the roles of men and women at home and in the workplace. Many line managers may be ill equipped to handle conversations about SPL, particularly where it is a man requesting the leave. There is real risk of discrimination claims if your line managers respond inappropriately to a man requesting SPL.
• Inform your employees. There has been a lot in the press about SPL and many employees may have some misconceived ideas about what SPL is and how it works. Making sure that your employees are aware of the change and what it may mean for them, will be key.
• Think about whether you will enhance shared parental pay. There are various options for employers while we wait to see if there is a challenge in the courts about the rate of pay for shared parental leave. Will you adopt a wait and see approach and just pay statutory shared parental pay? Will you be at the forefront of the issue and decide to enhance shared parental pay to the same level as your enhanced maternity pay? Or will you take a path somewhere in between the two? This needs some careful thought.
• How will you handle requests for discontinuous leave? Taking leave in this way could be very disruptive for businesses, particularly for example, if the employee is in a customer facing role. On the other hand, taking smaller blocks of leave at frequent intervals may be more beneficial for a woman who is trying to ensure that her career is not interrupted by having had a baby. Whilst there is a prescribed process in the Regulations, for considering discontinuous leave requests, employers will need to think about the impact of each request on a case by case basis. How will work be covered in the employee’s absence? Will there be staffing issues as a result of the leave?