Shared Parental Leave and Pay


Shared Parental Leave (SPL) is a right that enables eligible mothers, fathers, partners and adopters to choose how to share time off work after their child is born or placed (see box page 67). It replaced Additional Parental Leave for all babies born on or after 5 April 2015.


Under the Shared Parental Leave Regulations 2014 it is up to the mother to decide. If she says no, then her partner cannot insist on SPL. SPL and pay is available to a birth mother and the child’s father or a mother’s or adopter’s partner. “Partner” means a person who the mother or adopter is married to or in a civil partnership with; or a partner who the mother or adopter is living with. Shared parental leave and pay is also available to the intended parents in surrogacy arrangements who qualify for adoption leave and/or pay.


Agency workers who are entitled to Statutory Maternity Pay or Statutory Paternity Pay are not eligible for SPL but their employed partner may be. Agency workers and/or their partners may also be entitled to statutory Shared Parental Pay.


The TUC welcomed SPL as a way to “encourage more fathers to get involved in childcare from the very beginning” but warns that unless the leave is backed up with better pay, many couples will be unable to take advantage of the new rights. 


The government’s own estimates showed that just one in 20 fathers would be able to afford to take shared parental leave if it continued to be paid at the current statutory rate. A TUC analysis of take-up rates for Additional Paternity Pay (APP), showed that just one in 172 fathers (1,650 fathers across the whole of the UK) took Additional Paternity Leave in 2012-13, an incredibly low rate which the TUC blamed squarely on lack of pay.


Six months after the new rules on SPL came into force, a survey of 70 companies by the law firm Hogan Lovells and My Family Care, an organisation providing advice on family-friendly working, found that just 2% reported a significant take up of SPL. As with other employment rights, these rights are only enforceable in the employment tribunal on payment of the relevant fee or remission (see page 49).


There are complex and extensive eligibility and notification requirements for those wishing to use the new rights. The Department for Business, Innovations and Skills (BIS) published guidance in September 2014 which explains in detail how shared parental leave and pay will work: Shared parental leave and pay, is available to download from the government website at: https://www.gov.uk/shared-parental-leave-and-pay.


A group of charities and legal experts has produced a useful web portal providing help in navigating the new Shared Parental Leave regime, called ‘SPLash’ (www.yesslaw.org.uk/sharedleave).


Employment relations organisation Acas has produced in-depth guidance and training courses to help those who deal with maternity and paternity issues understand the new system. These are available to download from the Acas website at: www.acas.org.uk/index.aspx?articleid=4911.


Eligibility


Acas guidance explains that to qualify for shared parental leave and pay a mother must be entitled to maternity or adoption leave, or statutory maternity or adoption pay or maternity allowance, and must share the main responsibility for caring for the child with the child’s father or her partner. In addition, they will be required to follow a two-step process to establish eligibility.


Step 1 — Continuity test: A parent seeking to take SPL must have worked for the same employer for at least 26 weeks at the end of the 15th week before the week in which the child is due (or at the week in which an adopter was notified of having been matched with a child for adoption) and be still employed in the first week that Shared Parental Leave is to be taken.


The partner wishing to share parental leave has to have worked for 26 weeks in the 66 weeks leading up to the due date and have earned above the Maternity Allowance threshold of £30 a week in 13 of the 66 weeks.


Step 2 — Individual eligibility for pay: To qualify for Shared Parental Pay the parent must, as well as passing the continuity test, also have earned an average salary of the lower earnings limit or more (currently £112) for the eight weeks’ prior to the 15th week before the expected week of confinement (EWC).


It is up to the mother or adopter to decide whether to continue on Maternity Leave or opt to take SPL.


SPL may be taken at any time within the period which begins two weeks after the child is born or the date of the placement, and ends 52 weeks after that date. The 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.


An employed mother and her partner who are entitled to shared parental leave can expect to receive the following statutory amounts of leave and pay: 


• 52 weeks of leave can be taken as shared parental leave (after the mother has taken the minimum period of statutory maternity leave of two weeks, or four weeks if she works in a factory);


• 39 weeks of pay or maternity allowance as statutory Shared Parental Pay (which includes the minimum period of Statutory Maternity Pay (SMP) for two weeks, or four weeks where the mother works in a factory); 


• Shared Parental Pay (ShPP) is paid at the rate of £139.58 a week or 90% of an employee’s average weekly earnings, whichever is lower. ShPP is different to Statutory Maternity Pay where the first six weeks are more generous and is paid at the rate of 90% of what the woman earned before she went on maternity leave, regardless of how much she is paid. After the first six weeks, the rate of statutory parental pay is the same as SMP.