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Regulations that came into force on 1 December 2014 made changes to the way in which eligible parents can take leave after the birth or adoption of a child.
Shared parental leave (SPL) aims to introduce more flexible, more equal arrangements that will enable mothers to share up to 50 weeks' maternity leave and 37 weeks' pay with their partner so that both parents are able to keep a strong link to their workplace.
Qualifying employees have a legal right to choose to take SPL and to not suffer a detriment for using it or seeking to do so.
To be able to take SPL, parents must meet specific eligibility requirements. The mother or adopter must share the main responsibility for caring for the child with the child's father or the mother's partner and satisfy the 'continuity of employment test' – i.e. have worked for the same employer for at least 26 weeks at the end of the 15th week before the child’s expected due date/matching date and still be working for the employer at the start of each leave period. The child's biological father or the partner of the mother or adopter must have responsibility for caring for the child and meet the 'employment and earnings test' – i.e. must have worked for at least 26 weeks and earned an average of at least £30 a week (the maternity allowance threshold) in any 13 weeks in the 66 weeks leading up to the child's expected due date or matching date. In addition, parents must have properly notified their employer of their entitlement and have provided the necessary declarations and evidence.
The cut-off point for taking shared parental leave is 52 weeks following birth or adoption.
Under SPL, employed mothers are still entitled to 52 weeks' maternity leave as a 'day one' right. However, mothers can opt to end their maternity leave after the initial two-week compulsory maternity leave period – four weeks in the case of manual workers. Parents who are eligible can decide how they want to share the remaining leave and pay once the mother has decided to curtail her maternity/adoption leave. A mother can only share her leave with one person. The father or partner is still entitled to two weeks' ordinary paternity leave, paid at the flat rate of statutory maternity pay (SMP), but additional paternity leave and pay are no longer available.
If an employee is eligible for and intends to take SPL, they must provide their employer with a notice of entitlement to take SPL. This must contain specific information and be submitted at least eight weeks before the employee intends to take a period of SPL, in order to assist businesses in planning their workforce.
Parents can decide to take leave at the same time and/or take it in turns to have time off to look after the child. The number of notifications an employee is entitled to submit is capped at three (the original notification and two further notifications or changes) unless the employer allows them more.
Mothers who give notice to opt into SPL prior to giving birth can revoke the notice up to six weeks following the birth. This is in order to make sure that every mother is able to remain on maternity leave, should she choose to do so, once she has given birth. Otherwise, notice to end maternity/adoption leave is normally binding. However, the allocation of SPL can be varied between the parents at any stage, provided the employer is given details of the changes in writing. Any variation to leave that has already been booked will normally count as one of the three notifications.
SPL must be taken in complete weeks. An employee is entitled to take a continuous leave booking even if the employer does not respond to their notification. Each eligible employee is entitled to three such blocks of SPL. Where a request for discontinuous leave (e.g. a request to work one month in every two) is made, this can be refused by the employer but the entitlement to leave is not lost. Where discontinuous leave is requested and no agreement is reached with the employer, the employee may withdraw the request without it counting as one of their allowed three notifications to book leave, provided this is done within 15 calendar days of the original notification. If the employee does not withdraw their request, the discontinuous leave notification automatically defaults to a period of continuous leave. The employee can choose when this leave commences, provided this is done within 19 days of the original notification and the commencement date is no sooner than eight weeks from the date on which the original notification was given.
Under the new arrangements, there is a new statutory payment – shared parental pay (ShPP), payable at the flat rate of SMP – for parents taking SPL, with the same qualifying requirements that currently apply to SMP and paternity pay. If the mother or adopter gives notice to reduce their entitlement to maternity/adoption pay before they will have been in receipt of it for 39 weeks, any remaining weeks could become available as ShPP. An employee intending to claim ShPP must give their employer notice of how much ShPP both parents are entitled to, in what proportion and when each parent intends to take the paid leave and a declaration from their partner confirming their agreement to the employee claiming their amount of ShPP. The notice to claim ShPP can be included within the notice of entitlement to take SPL.
A notice of entitlement to take SPL or ShPP and the accompanying declarations is sufficient evidence of a right to claim SPL and ShPP. However, the employer can, within 14 calendar days of receiving the notice, request a copy of the child's birth certificate (if one is available). They can also request the contact details of the employee's partner's employer. If a request is made, the details must be provided within 14 calendar days.
If parents choose not to make use of SPL at first, they can opt to do so at a later date while they are still eligible, provided they give their employer eight weeks' notice and take the SPL within a year of the child's birth/adoption.
Under the new regime, the right to return to the same job for employees returning from any period of leave that includes maternity, paternity, adoption and shared parental leave that totals 26 weeks or less in aggregate is maintained, even if the leave is taken in discontinuous blocks. Any subsequent leave attracts the right to return to the same job or, if that is not reasonably practicable, a similar job.
In addition, the employee can agree with their employer up to 20 shared parental leave in touch (SPLIT) days to support them in returning to work. However, there is no obligation on an employer to offer these days or for an employee to agree to them. Parents can use these days to return to work on a part-time basis for a limited time.
Employers are also reminded that, since 1 October 2014, fathers/partners have a new right to take unpaid leave to attend two antenatal appointments.
Businesses should have in place an SPL policy explaining the changes and the procedures and time limits for dealing with requests for leave under the new system.
Early discussions at the stage where an employee submits a notice to book SPL will avoid any confusion and enable employers to take steps to mitigate the effects of the employee's intended leave pattern on the business.
The Advisory, Conciliation and Arbitration Service (Acas) has produced guidance on SPL, including a good practice guide for employers and employees, together with sample policy/letter templates.
The Government also has guidance on SPL and ShPP. This includes tools for parents to check eligibility, a planner and model declarations and notices for use when informing their employer of their intentions with regard to SPL. In addition, an online calculator to help prospective parents work out their leave and pay entitlements under the new system can be found on the GOV.UK website.
There is no statutory requirement for employers that offer enhanced maternity rights to women on maternity leave to 'mirror' those arrangements for employees who opt to take SPL. However, guidance produced by the Government – 'Employers' Technical Guide to Shared Parental Leave and Pay' – states that if an occupational scheme is offered to a mother on SPL, it could constitute sex discrimination if the same rights are not afforded to fathers or a mother's partner.
This resulted in claims by fathers that the SPL provisions are discriminatory. The Court of Appeal has now brought clarity to the situation when considering the appeals in two such cases – Ali v Capita Customer Management Limited and The Chief Constable of Leicestershire Police v Hextall. Mr Ali's claim that his employer's failure to pay him enhanced maternity pay constituted direct discrimination was rejected as Section 13(6)(b) of the Equality Act 2010 requires the Court to disregard any 'special treatment afforded to a woman in connection with pregnancy or childbirth' when comparing a father's treatment with that of a hypothetical female co-worker.
The Court found that Mr Ali's circumstances were in any event materially different from those of a mother on maternity leave. One of the primary purposes of maternity leave is to assist mothers in recovering from the physical and psychological impact of childbirth, and he was wrong to argue that its only purpose, after the first two weeks of compulsory leave, is to help with childcare.
The proper comparator for the purposes of a direct discrimination claim is, therefore, not a woman on maternity leave but a woman on shared parental leave. On that analysis, there was no difference between his treatment and that of such a co-worker.
Mr Hextall's claim that his employer's policy of only remunerating SPL at the statutory rate caused particular disadvantage to men and therefore amounted to indirect discrimination was also rejected. The Court found that his claim was in fact an equal pay claim, but this was bound to fail because of the exception in the Act that the implied sex equality clause has no effect in relation to terms of work which afford special treatment to women in connection with pregnancy or childbirth. In any event, a claim for indirect discrimination cannot be brought where the claim is, in reality, an equal terms claim, even if that claim only fails owing to the application of the statutory exception. Furthermore, a claim of indirect discrimination would have also failed as any disadvantage in the treatment of male employees he established would have been justified.
Mr Ali and Mr Hextall are seeking permission to appeal to the Supreme Court, so watch this space.
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