Joanna Martin is an Associate (senior lawyer) and employment specialist at Simons Muirhead & Burton in London. Here, she explains the new ‘Shared Parental Leave’ laws which will apply to the parents of babies due from April 2015 onwards
The new Shared Parental Leave laws are so complicated that even some lawyers don’t really want to talk about them. Presumably because of the complexity, people are putting their heads in the sand. For those considering their options, here is a breakdown of what it all means:
What is Shared Parental Leave and what will it replace?
As the law stands now, every female employee has the right to up to 52 weeks maternity leave – what this really means is she has the right to return to her old job within that period, after her maternity leave (or for those returning in the last six months, where it is not “reasonably practicable” for her to return to her old job, to a suitable alternative). For those who have completed 26 weeks of service by the end of the 25th week of pregnancy (i.e. when they are 26 weeks pregnant), they become entitled to Statutory Maternity Pay (SMP), which is 90 per cent of usual pay for the first six weeks, followed by £138.18 per week for the remaining 33 weeks – and the employer gets most of this refunded to them by the Government.
Companies sometimes offer enhanced maternity leave – so that they pay the employee more than SMP, and the terms of that are entirely up to the company. None of that is changing. Shared Parental Leave (SPL) rights are simply coming in as alternative.
Since 1 December 2014 the SPL law is officially in place and it affects the parents of babies due from 5 April 2015 onwards. The reason the law is already in place is to protect any parents who will be entitled to this kind of leave from being sacked or suffering detriment or harassment between now and April in relation to their plans to take the new shared type of leave.
Why Shared Parental Leave?
Shared Parental Leave has been introduced to replace ‘additional paternity leave’, which proved very unpopular with only 0.6 per cent of the British population taking it up since it was introduced three years ago. Additional Paternity Leave was available in the UK to fathers in the second part of the year of leave. It meant that after 20 weeks, in theory, the dad could take over and take what remaining SMP there was, and he had the right to leave his work and return with his job, or an equivalent role, still open to him when he returned. But for various reasons this was unpopular.
Today the changes in law towards the new SPL system emanate from Europe, which wants to encourage dads to get involved in the baby part of a child’s life rather than just the bit when the child gets older. They want to change perceptions to make it easier for dads to do the primary caring from the start. The idea is that there will ultimately be less attrition of mothers from the workplace, as they won’t have experienced the setback of a year’s absence in order to have and look after babies.
If it becomes the norm for both parents to take (say) six months off (albeit the patterns of how you can take SPL are seemingly limitless), discrimination towards parents is going to be a much less female-centric issue, which may have a knock-on effect on how seriously family-friendliness is taken by employers. This time next year, in theory, the whole legal landscape in terms of working parents could feel very different…
How it works
If you want to share your maternity leave and pay with your partner you have to formally opt out of (“curtail”) your traditional maternity leave and pay rights, and opt into the Shared Parental Leave regime. Having said this, maternity leave and Shared Parental Leave can feasibly be used together, like a patchwork. For example, a mother who gets enhanced maternity pay might decide to take it first, enjoying those enhanced conditions for as long as they last, and then move over to Shared Parental Leave.
In order to do so she would need to give eight weeks notice to her employer of her intention to take SPL after her period of “normal” maternity leave. Her partner (who needs to be an employee, but can be employed somewhere else), would be able to file his/her request for SPL once the mother has told her employer that she intends to convert to SPL (the partner can start SPL whilst the mother is still on maternity leave, provided she has informed her employer of her plan to convert later). Clear so far?!
Theoretically you could have a mum doing the first three months of her maternity leave while the father is on Shared Parental Leave, at the same time. Then the mother can convert to SPL later, so long as she has notified her employer. Being on SPL would allow the mother to return to work for a couple of months, if she wished to (perhaps to oversee an important project), then revert back to SPL for, say, the final months available to her and her partner as a couple. (Each of them use up the leave and pay at the same time; they only have one allowance of leave and pay to use between them, not one each).
Partners don’t have to be off at the same time. The father can take his “traditional” paternity leave then later convert to SPL whenever he likes (provided they are both eligible); they could take it in turns so each could do a month, and then a month off together. For employers the difficulty is they have to say “yes” if the proposed parental leave period is for a continuous block of time of at least a week. Discontinuous periods of leave (working on and off) can be requested in one notice from the employee, but don’t have to be accepted by the employer.
There is even scope to do shorter blocks using another prong (told you this was complicated), called Shared Parental Leave Keeping In Touch Days (“SPLIT” days) which are slightly different to regular KIT days in that there are 20 per employee, and they are paid. The thinking behind that is to allow people to DIY a period of part-time working. Say they wanted to use 2 SPLIT days per week, they could effectively working part-time for 10 weeks. The use of SPLIT days has to be agreed by the employer, and cannot be forced by the employee. There is real flexibility and bags of options you can pick though. But it takes a lot of research and decision-making.
The total time and pay available to parents in this kind of shared leave is the same as is currently available just to the mother, that is up to 52 weeks of authorised absence (albeit in reality it is 50, as 2 weeks of this the mother must take for health and safety reasons) – shared in various ways – and up to 39 weeks of SMP to share. If they both meet the qualifying requirements, they will need to decide how they want to divide their Shared Parental Leave and Pay entitlement. You can file three notices of your plans, as long as you give eight weeks notice each time. So you can take a punt on what you think you want to do for the first few months, then keep it under review within reason, then file your next notice.
Who is eligible for SPL?
Married couples, same-sex couples, civil partners, people in committed relationships are all covered by these rules, provided they both intend to use the leave to care for the child, and are individually eligible. (
You can only take SPL if you’re an employee, not if your are self-employed. If you’re self-employed however you can be a ‘gateway’ for your partner. It’s a sort of “reward people who pay tax” idea. The husband or partner, provided he can prove sufficient past earnings, doesn’t have an SPL right directly but rather he allows his employed wife (for example) to opt into Shared Parental Leave if they both want her to. The self-employed husband in this example is enabling her to access the right to this flexible form of leave, despite not being able to take it himself, if he can tick sufficient eligibility boxes. The benefit of that might be, for example, if you are a self-employed dad and she is an employed mum and say she wants to take enhanced maternity and then to go back to work for a specific project for a month, then to come back, and he takes over in the interim. With maternity leave if you go back to work, it’s over.
The notice and eligibility requirements of SPL are complex, and beyond the scope of this article, but the link at the bottom of the page should help anyone wanting to work out if they and their partner will qualify for one or both of them to take SPL rather than the “traditional” forms of parenting leave.
One might ask whether the biological element is going to be forgotten? The current European Pregnant Workers directive says that 14 weeks after birth is key for a mother’s physical recovery, for establishing feeding and for bonding with the baby. In the UK we say two weeks post-birth you can’t come back to work, and that’s four weeks if you work at a factory. Beyond this, for babies due from next April, the parenting leave can be shared in all manner of patterns between both parents.
This raises certain possible concerns for those who may feel torn between wanting to share the parenting of their newborn with their partner, but who may have spent many years expecting to have the opportunity for a year away from the workplace, adapting to motherhood and focusing on their baby. This could raise very sensitive and difficult issues for couples, particularly those having their first child, trying to decide what will work best with no experience at all of how they are likely to feel.
Further, a feature of the new SPL regulations is very much that the application for SPL and its use is a joint enterprise between the couple. Crucially, both partners have to consent to each other’s plans, which they have to agree two months in advance, and notify to their individual employers. Having a newborn is stressful enough, without having to grapple with complex laws, your partner’s potentially differing preferences for leave, and the prospect of wanting to alter the plans you have made as your time off progresses. It strikes me that in any instance of relationship breakdown, SPL will become virtually impossible to administrate, as it is only available to couples, who agree to each others’ plans.
From a feminist perspective this is all quite tricky; of course one wants equality and choice for women which requires the playing field to be levelled in respect of managing work and family with your partner, but there is a jarring note in respect of a creeping pressure to go back to work, because with SPL, in theory, you can. This in turn “exposes” your choice not to, if you decide to take that time off. I don’t know how it is going to feel, and it is concerning that those mothers who continue to decide to take a full year off may potentially be seen as less committed, over those who return for significant periods during the leave.
The new law is also quite employee-centric – the process starts with the employees going to their employers with loads of notices and notifications in order to trigger their rights to shared leave and pay. Not only does a couple have to agree on their plans of how to spend this shared period of parenting leave, but they have lots of homework and form-filling to do first, all whilst they may have their hands full trying to move to a property big enough for themselves and their baby, sort out nursery gear, and choose a buggy.
For further reading acas.org.uk