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Shared Parental Leave – fireworks or just a fizzle?

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28/05/2014

It has been on the horizon for some time now – a complete overhaul of parental leave as we know it is now less than 11 months away. An overhaul that has been described by some business leaders (who are not generally known for excessive hyperbole) as a ‘nightmare’ for smaller employers. On the other hand, the Government’s own prediction that only two to eight percent of eligible fathers/partners will take advantage of shared leave might leave one wondering what all the fuss is about.

Our previous business insight outlined some key points of the new scheme. Without a doubt, it will be quite a test for HR to get up to speed with and administer the new scheme smoothly from day one. Indeed one employment barrister commenting on the draft Regulations likened it to ‘playing 4-dimensional chess’.

Whilst the scheme is undoubtedly going to be complex and unwieldy, it’s not all doom and gloom as the Department of Business Skills and Innovation (BIS) has recently announced that it is currently working on a range of information and guidance materials for employers to help them ‘understand and access’ the new system. The materials will be made available in the summer and BIS say that they will include…cue drum roll….‘online tools’. Depending on their quality, online tools could potentially be manna from heaven for the majority of employers who have read more than enough to ‘get’ the basic structure and policy of the Regulations but are, nevertheless, struggling to envisage how it is all actually going to work in practice come April next year. Employers, after all, are the ones who are going to have to make this work in practice, write the new policies and explain it to their (likely to be confused) employees. So, further guidance from BIS is definitely a good thing and will be the source of some essential, if rather dry, holiday reading for many employers and their HR teams.

In the meantime, and to help with the ‘getting up to speed’ process, here are 10 useful to know facts about the new scheme:

  • Whilst shared parental leave only applies to parents of babies due (or placed for adoption) on or after 5 April 2015, the right not to be dismissed or subjected to detriment for proposing to make use of the new scheme kicks in from 1 October 2014.
  • From 1 October of this year, fathers will have a new right to take unpaid leave to attend up to two antenatal appointments.
  • Shared parental leave is not a ‘day one’ right. Employees must have 26 weeks’ continuous service at the 15th week before the expected week of childbirth. Each parent will need to meet the qualifying criteria for leave and pay in his or her own right.
  • Employers could have as little as 8 weeks to prepare for an employee being absent for a significant amount of time on shared parental leave. This is because employees are only required to notify their employer of their intention to take shared parental leave at least 8 weeks before the first period of leave.
  • Employees can ask to take shared leave in discontinuous blocks but, in a concession to business, employers will have to agree any such proposed pattern of time off and have the right to insist it is confined to a continuous block. If the request is for a single and continuous period of leave then the employer must agree to it.
  • Existing maternity rights remain totally unaffected if the mother chooses to take this rather than shared parental leave. In other words, a woman who qualifies for statutory maternity leave and pay can still take 52 weeks’ leave and 39 weeks statutory maternity pay.
  • Shared parental pay is paid at the flat rate of statutory maternity pay (currently £138.18 per week). Given that the first 6 weeks of statutory maternity leave is paid at 90% of the woman’s earnings it is unlikely that many couples would choose to share parental leave before the first 6 weeks of statutory maternity leave had expired – if they did, they would lose the mother’s entitlement to 90% of pay for this period. Assuming that the father or partner’s employer knows about the birth of the child this may, at least in practice, provide a little more than the 8 week ‘warning’ of any likely future request for shared parental leave.
  • Rather counter-intuitively, shared parental leave and pay can be taken at the same time (i.e. both parents can be off on shared parental leave together) or it can be taken as consecutive periods.
  • Each employee may take up to 20 ‘keeping in touch’ (KIT) days during a period of shared parental leave. These 20 KIT days for shared parental leave are in addition to the existing entitlement to 10 maternity leave KIT days.
  • Employees on shared parental leave continue to benefit from the terms and conditions of their employment (except remuneration) as if they were not absent and retain the right to return to the same job where the leave lasts 6 months or less; in all other cases, the right is to return to a similar (but not identical) role.

We will issue a further update on this topic once the BIS materials have been published. If you would like to receive further updates about shared parental leave or any other aspect of employment law you can register for our employment newsletters and updates here or you can follow our employment team’s regular updates on twitter @WMEmployment.

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