Maternity and paternity leave and pay to be reformed
The Government has committed to introducing a new system of shared parental leave and pay that parents can access so that, where they want to, they can share caring responsibilities.
On 13 November 2012, the Government published Consultation on modern workplaces - government response on flexible parental leave (PDF format, 394K) (on the UK Government website). The Government said that it would retain the default 52-week entitlement to maternity leave, and 39 weeks' statutory maternity pay for eligible women, and fathers' entitlement to two weeks' ordinary paternity leave and pay.
However, the Government proposed, from 2015, to enable mothers to commit to ending their maternity leave and pay at a future date, and share the untaken balance of leave and pay as shared parental leave with their partner. Eligible parents would be able share 50 weeks' leave and 37 weeks' pay available to the mother. To be eligible to use the new shared parental leave system parents would need to meet qualifying criteria (a minimum level of earnings and length of service - the Government said that it intended that the qualifying rules for shared parental leave would mirror those for ordinary paternity leave). Each parent would need to meet the qualifying criteria for leave and pay in his or her own right. Shared parental leave would have to be taken in a minimum of one-week blocks but could be interspersed with periods of work. Parents would also be able to take leave at the same time. Employees who wished to end their maternity leave would not need to return to work to convert their untaken maternity leave into shared parental leave. An employee could give her employer notice of the date on which she intends to end her maternity leave and the untaken balance of her maternity leave would then become available immediately as shared parental leave. Accordingly, the employee's partner would be able to start taking shared parental leave while the employee was still on maternity leave. Similar arrangements would apply to adoptive parents.
The Government confirmed that additional paternity leave and additional statutory paternity pay will be abolished when the new regime comes into effect. Further, the Government proposed to give fathers, and partners of pregnant women, the right to take unpaid time off work to attend two antenatal appointments with their pregnant partner.
On 5 February 2013, the Government published the Children and Families Bill (on the UK Parliament website), which introduces shared parental leave and statutory shared parental pay for parents and adopters. The Bill, when enacted, will allow for Regulations to be made relating to shared parental leave and pay. Therefore, much of the detail around them and how they will be administered is to follow.
Among other matters, the Bill, and Regulations made under it, will:
- set the maximum amount of parental leave, which according to the explanatory notes to the Bill is expected to be the total length of maternity or adoption leave;
- provide that the amount of shared parental leave to which a person is entitled will depend on the amount of leave that the other parent has taken in respect of the child;
- reduce shared parental leave by the amount of maternity leave or adoption leave taken;
- set the parameters and requirements for shared parental leave and pay, in particular in relation to:
- when it can be taken;
- qualifying conditions;
- requirements around giving notice to take leave and how much leave the parties intend to take;
- possible consent of the mother or adopter about how much leave his or her partner can take;
- how much leave and pay can be shared; and
- variations to periods of shared parental leave and pay;
- give employees on shared parental leave an entitlement to the benefit of their terms and conditions of employment (except remuneration) as if they were not absent, and a right to return to work;
- make provisions around redundancy and dismissal for employees who take shared parental leave;
- prevent parents who take shared parental leave from taking any remaining ordinary paternity leave;
- allow employees to bring forward the date on which they end ordinary or additional maternity or adoption leave, provided that the other parent has taken prescribed steps in relation to shared parental leave (such as giving the required notice of his or her intention to take shared parental leave);
- require that parental leave can be taken as a single period or as non-consecutive periods but where an employee proposes to take non-consecutive periods of leave the employer will, subject to restrictions to be specified, be able to require him or her to take the leave as a single period to start on a day that the employee proposes;
- require that, to qualify for statutory shared parental pay, the mother must be entitled to statutory maternity pay (or the main adopter entitled to statutory adoption pay) in respect of a child;
- limit statutory shared parental pay to the length of statutory maternity pay or statutory adoption pay (currently 39 weeks);
- abolish additional paternity leave and additional statutory paternity pay; and
- set statutory adoption pay at 90% of normal earnings for the first six weeks; and
- extend the right to take ordinary paternity leave and pay, adoption leave and pay, and shared parental leave and pay to intended parents in a surrogacy situation and approved prospective adopters who look after children as part of a "fostering to adopt" arrangement.
In relation to time off for antenatal care, the Bill will introduce a right for fathers and partners, and intended parents in a surrogacy situation, to take time off work to accompany a pregnant woman at an antenatal appointment on two occasions.
On 25 February 2013, the Government launched a further consultation (Modern Workplaces: Shared parental leave and pay - administration consultation (PDF format, 539.5K) (on the UK Government website)) setting out its proposals for how shared parental leave and pay will work in practice and seeking views on the administration process. The proposals include:
- a requirement for both parents (birth, adoptive or intended parents in a surrogacy arrangement) to follow a two-stage process to qualify for shared parental leave and pay;
- introducing a notification to indicate to employers that eligible parents plan to opt into the shared parental leave system (the Government is seeking views on the information that should be included in this notification);
- for a limited period from birth, a right for an employee to revoke her notice to end her maternity leave and opt into the shared parental leave system where the notice was given prior to the birth (the Government is seeking views on whether a four- or six-week period for revoking the notice is appropriate);
- allowing employees to notify their employer of their shared parental leave intentions as they require them;
- that employees must give their employer eight weeks' notice before taking new blocks of shared parental leave or varying leave;
- a restricted period of time for employers and employees to discuss patterns of shared parental leave, followed by a "sign-off point" at which the employee can either agree to the pattern of leave that he or she has negotiated with his or her employer or withdraw the request (the Government is seeking views on whether or not a two-week negotiation period is appropriate);
- a cut-off point after which parents will no longer be able to use any outstanding shared parental leave or pay entitlement (the Government is seeking views on whether the cut-off point should be 52 weeks from the start of the employee's maternity leave or 52 weeks from birth, with the same principle to be applied to adopters);
- introducing keeping-in-touch days for employees on shared parental leave (the Government is seeking views on whether or not 10 keeping-in-touch days per parent for shared parental leave is the appropriate number);
- two different approaches to the right to return to work after shared parental leave (the Government is seeking views on which approach should be followed);
- making statutory adoption leave and pay available to approved adopters where a child is placed with the adopters in a fostering-to-adopt capacity (the Government is consulting on how it can provide realistic notification for employers of the need to take adoption leave and pay in cases of fostering to adopt where the child is matched and placed with the prospective adopters on the same day); and
- aligning the notice periods for paternity leave and pay to require fathers, a mother's partner or a secondary adopter to give their employer notice for paternity leave and pay at least 15 weeks before the expected week of childbirth (or, for adopters, within seven days of being matched with a child).
Further, the Government has proposed that there will be no requirement to provide evidence of the woman's pregnancy to qualify for time off to attend antenatal appointments and that there will be no statutory process for making a request for time off to attend an antenatal appointment (although employers may set their own process if they wish).
The Government is seeking responses to the consultation by 17 May 2013.
- The XpertHR employment law manual sets out the existing law on pregnancy and maternity rights, paternity and adoption rights, and parental leave.
- The XpertHR line manager briefing section includes briefings on basic maternity rights and paternity rights.
Government guidance and documents
- Read the Government's Consultation on modern workplaces: i) flexible parental leave ii) flexible working iii) Working Time Regulations iv) equal pay (PDF format, 826K) (on the UK Government website)).
- The Government's plans on shared parental leave are contained in Consultation on modern workplaces - government response on flexible parental leave (PDF format, 394K) and Modern Workplaces: Shared parental leave and pay - administration consultation (PDF format, 539.5K) (on the UK Government website).
- Children and Families Bill The full text of the Bill can be viewed on the UK Parliament website.