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One of the reasons often cited for the gender pay gap and gender inequality is that the role of primary carer is largely borne by women. Shared Parental Leave – due to come into force on 1 December 2014 – has the potential to bridge that gap and aims to place women and men on more of an equal footing in the workplace by giving parents the opportunity to share childcare responsibilities for a newborn or adopted child and to dismantle the historical and cultural assumption that the woman will be the parent who stays at home.

The new scheme presents a challenge for employers, who will need to develop a Shared Parental Leave policy, as well as update their existing family leave policies. It also raises the question of whether employers offering enhanced maternity pay should enhance shared parental pay, too.

Shared Parental Leave: a good practice guide for employers and employees

The Acas Good Practice Guide for Employers and Employees is useful for understanding the Shared Parental Leave system, which will apply to children born or adopted on or after 5 April 2015.

Paternity leave

The current situation allows eligible mothers to take up to 52 weeks’ maternity leave, while eligible fathers (or the mother’s civil partner or spouse) have the right to take two weeks’ ordinary paternity leave, which must be taken within eight weeks of the baby’s arrival. Thereafter, they may opt to take additional paternity leave lasting between two and 26 weeks. However, it is only 20 weeks after the birth of the newborn, and only if the mother has brought an end to her maternity leave by returning to work, that additional paternity leave may be taken.

Shared Parental Leave will not replace current maternity leave, ordinary paternity leave or adoptive leave – while these will remain unchanged, additional paternity leave will no longer be available. Instead, eligible parents will be able to share up to 50 weeks’ leave, which can be taken at any time within 52 weeks of the child’s birth and after the compulsory two-week maternity leave period.

Shared Parental Leave: eligibility criteria

To qualify for Shared Parental Leave, a parent must:

  • Be an employee;
  • Share the primary responsibility for the child with the other parent;
  • Have properly notified their employer of their entitlement and provided the necessary declarations and evidence.

In addition, the ‘continuity of employment’ test and the ‘employment and earnings’ test must be satisfied. This means that the parent intending to take Shared Parental Leave must be in continuous employment for at least 26 weeks at the end of the 15th week before the child’s expected due date and remain in employment with the employer at the start of each leave period. Secondly, that parent’s partner will need to have worked for at least 26 of the 66 weeks before the due date and earned a weekly average of at least £30 in any 13 weeks.

Parental leave entitlement

The flexibility afforded by the new system means parents will have the choice of taking either an unbroken period of leave (continuous) or, subject to the employer’s agreement, intermittent periods of leave of at least one week (discontinuous), either simultaneously or separately.

For example, after bringing her maternity leave to an end, the mother can take a period of Shared Parental Leave with her partner, who can then take the remainder on his or her own.

Notice Requirements

The notice requirements for Shared Parental Leave are complex but the key points are:

  • Both parents must give their employer no less than eight weeks’ notice of their intention to take Shared Parental Leave and a separate notice setting out the dates of each period of Shared Parental leave requested in that notice (period of leave notice);
  • An employee may give a total of three period of leave notices, including variation notices;
  • A request to book continuous leave must be accepted by the employer, who will need to decide how the leave period will be covered in the absence of the parent;
  • In the event of a notification for discontinuous leave, the employer will have 14 calendar days to consider how and whether the request (or a modified version of it) can be agreed. Employers may find it useful at this stage to have an informal meeting with the employee to discuss the request, especially if the employer is not immediately agreeable to a notification for discontinuous leave;
  • If an agreement cannot be reached, the employee will be entitled to take the total amount of leave requested in the notice as a continuous period of leave.

Shared Parental Leave policy

Under the new legislation, an employee making use of Shared Parental Leave has the right not to be subjected to any detriment and is protected from dismissal connected with the exercise of their rights.

Also, employees returning from Shared Parental Leave lasting not more than 26 weeks in total will be entitled to return to the same job. In the case of leave lasting more than 26 weeks, employees will have the right to return to the same job or, where that is not reasonably practicable, a job that is suitable and appropriate in the circumstances.

Employers should ensure that all requests for Shared Parental Leave are dealt with fairly and consistently (particularly discontinuous block requests) to minimise the risk of grievances and constructive dismissal claims.

In order to avoid discrimination claims, those employers already offering enhanced maternity pay will need to consider whether they will enhance Shared Parental Pay as well. If Shared Parental Pay is not enhanced but maternity pay is, this may amount to indirect sex discrimination, in that a man on Shared Parental Leave may argue he has suffered a particular disadvantage. Employers need to be aware that any such disadvantage will need to be objectively justified.

For more information on the issues in this article or to discuss implementing a shared parental leave policy in your business, contact our Employment specialists by by phoning 0117 904 6000.