Shared Parental Leave (SPL) is a period of leave available to parents with babies due on or after 5th April 2015. It enables mothers to commit to ending their maternity leave after their 2 week compulsory maternity leave (4 weeks for warehouse workers) and opt in to SPL with their partner. SPL is also available to adoptive parents where the child is being placed on or after 5th April 2015. Certain eligibility requirements apply.
Each parent claims SPL from their own employer. Eligibility is dependent upon satisfying an individual eligibility test and partners must satisfy a joint eligibility test. In summary this is based on meeting minimum earning requirements, being the primary carer for the child and holding the required length of service prior to the expected week of confinement (EWC) or confirmation of placement in cases of adoption.
Mothers are able to curtail or give notice of their intention to curtail their leave and share any untaken leave with their partner. The amount outstanding is dependent upon the amount of statutory maternity leave taken by the mother minus any SPL that the other parent takes. Similar rules apply to adoption leave. If the mother curtails her maternity leave prior to the 39 weeks elapsing then providing they meet the eligibility requirements they would be entitled to statutory shared parental pay.
A request for SPL should be provided in writing stating the entitlement and intention to take such leave. This should ideally be provided eight weeks before the start of the first period of leave that the employee wishes to take and should set out the start and end dates of each period of leave requested.
The desired leave can be taken in a continuous block or instalments interspersed with periods of work but a leave period must be a minimum of a week at a time. Parents can make 3 requests per pregnancy for SPL.
Upon receipt of notification the employer has 14 days to discuss the proposal with the employee and consider how and whether the request, or a modified version can be agreed. Should an employer fail to respond to a notification for SPL then the employee will be entitled to take a continuous leave booking even if the employer does not respond to the notification. A notification for continuous leave cannot be refused and therefore an employer will need to decide how the leave period will be covered. If discontinuous leave is requested then, as previously mentioned, the employer will have 14 calendar days to discuss, authorise or agree an alternative. If no agreement is reached regarding a discontinuous leave request during the 14 calendar day’s discussion period or no response is given, then the leave will default to a single continuous block. The employee will then have to decide whether to take the leave as a continuous block or to withdraw the request.
Leave can also be cancelled or varied however such amends count as a further notification. Such amendments should be provided 8 weeks before the intended leave start date. Instances where the employer proposes a variation to leave, and the employee is agreeable, would not count as a further notification and this should be confirmed in writing. You may exercise discretion if you permit further right to notification.
An employee may work for up to 20 days during the SPL period without bringing SPL to an end. Similarly to maternity leave, an employee on SPL has preferential redeployment rights, if during a period of leave a redundancy situation arises. Furthermore as of 1st December 2014 an employee has the right not to be subjected to a detriment because, among other things, they have sought to exercise the statutory right to take such leave. A dismissal in these circumstances would automatically be unfair.
Typical employment law pitfalls
Continuous leave cannot be refused. It would therefore be wise to arrange a discussion meeting with the employee to discuss this further. It provides a forum to discuss the requested leave further and make the leave as mutually beneficial as is practicable.
Discontinuous periods of leave can prove problematic for employers particularly managing the demands of the business and limiting the impact of intermittent absence on the operational running. Once again it is advisable to hold a meeting upon receipt of a request and explore it thoroughly.
Furthermore in light of Shared parental leave employers must think very carefully about how and if they enhance shared parental pay to minimise the risks of discrimination claims. If an employer pays enhanced pay to employees on maternity leave, but not to employees who opt for shared parental leave, there is a risk of sex discrimination claims from male employees who take shared parental leave.
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