The Shared Parental Leave Regulations 2014 have been published.  This legislation came into force on 1st December 2014 and applies where a baby is due or adopted on or after 5th April 2015.

These Regulations allow eligible women to curtail their right to maternity leave to enable their partner to take shared parental leave. Eligible parents can share up to 50 weeks’ leave and 37 weeks’ pay although a birth mother must take at least 2 weeks (4 weeks if she works in a factory) leave and this cannot be passed to the father.

The new Regulations have significant effects for employers and it is important to ensure that you are aware of the implications. In this article we take a more detailed look at what these changes mean.

The aim of this legislation is to offer greater flexibility to parents when it comes to managing childcare responsibilities during the child’s first year. It means that the total 52 weeks of what was “maternity leave” can be shared between parents.

It may be the case that the mother wants to take 9 months off but wants help from the father for the first 3 months - she can elect to pass to him 3 months of her maternity leave and he can have time off at the same time at the start – helpful for the first few weeks of little or no sleep!  Alternatively, it may be that the parents want to have 6 months off consecutively – both are now possible!

Shared parental leave may be taken at any time within the period which begins on the date the child is born/date of the placement and ends 52 weeks after that date. An employee is entitled to submit three separate notices to book leave. Leave must be taken in complete weeks and may be taken either in a continuous period ( which an employer cannot refuse) or in a discontinuous period (which the employer can refuse). If a request for discontinuous leave is refused then the total amount of leave requested in the notice will automatically become a continuous block unless it is withdrawn.

Helpful guidance can be found on the ACAS website - http://www.acas.org.uk/media/pdf/r/q/Shared-Parental-Leave-a-good-practice-guide-for-employers-and-employees.pdf   

Key questions:

What discretion will an employer have to refuse requests for shared parental leave?

Eligible employees can request three periods of leave and, as part of each request, they may seek a continuous or a discontinuous period of leave.

Staff members must provide their employer with a notice of entitlement to take shared parental leave. The notice must be given at least eight weeks before the start of a period of shared parental leave and must include:

• How much leave is available;
• How much leave they are entitled to take;
• How much leave the other parent is intending to take;
• How they expect to take it.

When an eligible employee gives an employer eight weeks’ notice that they intend to take a continuous period of shared parental leave there is no discretion available – the employer must accept the request.

If the request is for discontinuous leave, an employer has 14 calendar days in which to consider the request and decide whether or not it can be accommodated, before advising the employee of the decision.

If the request cannot be accommodated, a modification may be offered. If, after discussion, no suitable modifications can be agreed an employer can refuse the employee’s discontinuous leave request. It will then be for the employee to decide whether to take the same amount of leave in one continuous block or to withdraw the request completely. If the request is withdrawn at any time on or before the 15th day after it was given, it will not count towards one of the employee’s three requests.

Requests for discontinuous shared parental leave must be properly considered by the employer and a consistent approach should be taken in the organisation so as to reduce the risk of grievances and/or litigation.

What happens with holiday entitlement during shared parental leave?

Holiday for either parent continues to accrue at the rate it would if they were working, in the same way holiday currently accrues for women on maternity leave. If shared parental leave is taken over the end of a holiday year, such leave from the previous year should be carried over.

Will both parents be able to take shared parental leave at the same time?

Yes. Both parents can take leave at the same time or they may choose to take it at different times – it is up to them.

Also, remember that the mother’s partner can start a period of shared parental leave while the mother is on maternity leave, provided that the mother has submitted a notice stating when her maternity leave will end and her partner has also complied with his or her notification obligations.

Should employers offer enhance shared parental leave pay?

Many employers offer enhanced maternity pay as a benefit to remain competitive. However, much has been written about the risk of discrimination claims if enhanced maternity pay is available to women but only statutory enhanced parental leave pay is available to men. At this time there is case law that supports the possibility to objectively justify different treatment.

What does this cost to employers?

A mother, subject to certain criteria, will be entitled to statutory maternity pay/ adoption pay/maternity allowance for up to 39 weeks. If the mother gives notice to reduce her entitlement before she has received the full 39 weeks then any remaining entitlement could become available as shared parental leave and the “father” would be entitled to the balance of pay for the outstanding leave. Currently the pay is £138.18. This is likely to go up marginally on 5 April 2015

What should employers be doing now to prepare?

• Consider the impact that shared parental leave may have in your organisation, especially requests for discontinuous leave.
• Devise and roll-out training for line managers on the new regime and their handling of requests for leave.
•  Consider your existing family-friendly benefits and decide whether or not to offer enhanced shared parental leave pay, ensuring that your decision is well-reasoned and properly documented.
•  Draw up a policy and template documents that record decisions and rationales to assist managers and provide evidence in the event of claims being raised.
•  Amend your existing maternity, paternity and adoption policies to reflect the new regime and dovetail with the new policy.
•  Think about how you will communicate the new policy (and amendments to existing policies) to staff to make sure they are all aware of the various notification requirements.
•  Ensure you have a system to keep track of requests and periods of leave taken.