Rights to time off for working parents and carers — change is on the way

More flexible sharing of maternity leave between parents

Changes to the system of shared parental leave will become law on 1 October 2014. The changes affect babies born, matched or placed for adoption on or after 5 April 2015. The new laws are found in Part 7 of the Children and Families Act 2014 (CFA 2014). There are also draft regulations, the Shared Parental Leave Regulations 2014, the Shared Parental Pay Regulations and the Maternity and Adoption Leave (Curtailment of Statutory Rights to Leave) Regulations.

The new system, once operational, will give new mothers in England, Scotland and Wales the right to choose to return to work two weeks after giving birth, and to share the rest of their maternity leave with their partner. Here are the key features of the new flexible parental leave scheme:

• the total leave entitlement will remain at 52 weeks, only 39 of which (effectively nine months) will be paid, as under the existing statutory scheme;

• only employees with 26 weeks’ service will be allowed to take shared parental leave. Compare this to a mother’s entitlement to 52 weeks’ maternity leave, which is available from day one of employment and which remains unaffected by this change to the law (see page 226);

• the woman must take the first two weeks’ compulsory maternity leave following birth. She can choose whether to share the remaining 50 weeks of her leave, 37 of which will be paid. The choice is entirely hers, so if she decides to take the whole 52 weeks of her maternity leave, her partner will have no right to shared leave;

• the woman must give at least eight weeks’ binding notice of her decision to opt into the new shared parental leave system. At the end of that notice, her maternity leave will end;

• she can give notice to end her maternity leave at any stage, even before the birth. However, to allow scope to change her mind after the birth, there will be a window of up to six weeks after birth to withdraw that notice;

• both parents will have to give their employers notice of their eligibility and intention to take shared parental leave. At the same time, they will need to provide a non-binding indication of their intended leave pattern;

• in addition, employees will have to give eight weeks’ notice of their intention to take specific periods of leave;

• the number of requests for shared parental leave (or changes to leave) is to be capped at three, but this will not prevent voluntary arrangements being agreed with the employer;

• if the employer does not agree to the leave pattern being broken up, they will be able to insist on it being in one continuous block;

• each parent is to have 20 “KIT-style” (“keep-in-touch”) days, in addition to the 10 days available to a woman on maternity leave, to keep in touch with the workplace;

• parents will be allowed to take leave in turns, in different blocks or at the same time;

• parents will be allowed to take shared parental leave until the child’s first birthday;

• the right to return to the same job will only be available where the total amount of leave taken by the employee adds up to 26 weeks or less, even if taken in discontinuous chunks,

• both parties must be directly employed to access shared parental leave. If the mother is self-employed, her directly employed partner will have no right to shared parental leave;

• eligible adopters will also be able to access the new shared leave rights.

The TUC has welcomed shared parental leave as a development “that should encourage more fathers to get involved in childcare from the very beginning”, but cautions that unless the leave is backed up with better pay, many couples will be unable to benefit.

Planned changes for expectant fathers, partners and adopters

• Part 8 of the CFA 2014 provides a new right, from 1 October 2014, for employees and qualifying agency workers who are partners of pregnant women to take unpaid time off work to accompany her to up to two ante-natal appointments. The right is to be available to the pregnant woman’s husband, civil partner or partner (including same-sex partner), the father or parent of a pregnant woman’s child, and qualifying intended surrogate parents (Part 8 CFA 14 section 127);

• there are also new rights to paid and unpaid time off work for adopters to attend meetings in advance of a child being placed with them for adoption;

Other changes to support parents and carers

• Flexible working: From 30 June 2014, all employees with 26 weeks’ service are to be allowed to make a flexible working request, whether or not they have caring responsibilities. The existing statutory procedure will be replaced by an Acas Code of Practice. Acas has also produced draft guidance: Handling requests to work flexibly in a reasonable manner. For information on the intended new framework for requesting flexible working, see page 238.

• Parental leave age limit: The upper age limit for unpaid parental leave is to increase to 18 for all children in 2015. This will provide each parent with the right to up to 18 weeks’ unpaid parental leave for each child under 18;

• Adoption: Under the CFA 14, adoption leave and pay is to be more closely aligned to maternity leave and pay, for all babies matched or placed for adoption on or after 5 April 2015. In particular:

• there will be no qualifying service requirement for Statutory Adoption Leave;

• the first six weeks of Statutory Adoption Pay will be set at 90% of the adopting employee’s pay, instead of the current flat rate (see page 233), matching the statutory entitlement to SMP;

• rights to adoption leave and pay, time off for ante-natal appointments and shared parental leave will be extended to prospective parents in the “fostering for adoption” system and intended parents in surrogacy arrangements who qualify for a parental order under section 54 of the Human Fertilisation and Embryology Act 2008).