Are agency workers entitled to shared parental leave and pay?

An agency worker may be entitled to statutory shared parental pay but it is unlikely that he or she will qualify for statutory shared parental leave.

An individual must be an "employee" to qualify for statutory shared parental leave, ie he or she must work under a contract of employment. An agency worker may have a contract of employment with the agency, in which case he or she could qualify for statutory shared parental leave through the agency. In exceptional circumstances, an agency worker could have a contract of employment with the hirer. However, in most cases an agency worker will not have employee status and will not qualify for shared parental leave.

To qualify for statutory shared parental pay, an individual must be an "employed earner", ie he or she must be employed under a contract of service or office (s.2 of the Social Security Contributions and Benefits Act 1992). Therefore an agency worker can be an employed earner and can be entitled to statutory shared parental pay.

The agency worker must meet the other eligibility requirements for statutory shared parental pay, including having normal weekly earnings of at least the lower earnings limit for national insurance contribution purposes for a period of eight weeks ending with the 15th week before the expected week of childbirth (or ending with the week of notification of matching for adoption).

The administration of statutory shared parental pay is the responsibility of the party that is liable to pay the employee's national insurance contributions. In most cases, this will be the agency, not the hirer.

Where an agency worker is eligible for maternity allowance, but not statutory maternity pay, she will not be entitled to statutory shared parental pay in her own right, but she could curtail her right to maternity allowance and enable her partner to take shared parental leave and pay (provided that the partner meets the eligibility requirements).