Shared parental leave: the basics

Author: Darren Newman

Consultant editor Darren Newman provides an overview of the new right to shared parental leave and suggests that, while the relevant legislation is complicated, dealing with shared parental leave itself need not be.

The Shared Parental Leave Regulations 2014 have now been laid before Parliament. They come into force on 1 December 2014 and apply in respect of babies expected to be born on or after 5 April 2015. This means that the first babies in relation to which employees can take shared parental leave have already been conceived.

Shared parental leave overlaps with a mother's right to take maternity leave and exists alongside her partner's right to take one or two weeks' paternity leave. It replaces the right to additional paternity leave. However, not everyone qualifies for shared parental leave; both parents need to have at least 26 weeks' service with their current employer and earn at least the minimum threshold needed to qualify for maternity allowance.

The basic idea is that the parents of a child (including adoptive parents) can decide how to divide a total of 52 weeks of leave between them. So, for example, the mother could decide to take just a few weeks' leave to recover from the birth (there is still a compulsory two-week maternity leave period immediately following childbirth), with the rest of the leave being taken by her partner.

An important feature of the new scheme is that the periods of shared parental leave do not have to be consecutive. The two parents can take leave at the same time, provided that the total amount of leave taken does not exceed 52 weeks.

The Regulations even provide that - with his or her employer's agreement - an individual can take discontinuous blocks of leave. This means, for example, that the mother can take leave for a period and then return to work while her partner takes some leave, with the mother then going on leave again for the remaining period.

Statutory shared parental pay is available for up to 39 weeks, reduced by the number of weeks of statutory maternity pay taken by the mother. However, it is paid only at the same flat rate as the lower rate of maternity pay. Only the mother can take the initial six weeks of leave at 90% of her weekly earnings.

Employers are likely to be worried about the administrative burden and uncertainty caused by the flexible nature of shared parental leave. Certainly the Regulations themselves are fiendishly complicated. However, just because the drafting of the Regulations is complicated, this does not mean that shared parental leave itself needs to be. In fact, I would say that the most difficult administrative burden is placed on employees, who have to give carefully timed notices and declarations in order to qualify.

In general, each parent must give eight weeks' notice of his or her intention to take shared parental leave (in the mother's case, this will be in addition to the notice that she must give in relation to her maternity leave). The employer is also entitled to see a copy of the child's birth certificate and to be given the other parent's national insurance number and the name and address of his or her employer.

There is really not much more to it than that. Of course complications may set in if the parents want to take the leave in blocks, with a period of work in between, but this can be done only if the employer agrees. There is no requirement for the employer to give the request reasonable consideration and no limitation on the employer's ability to refuse. Usually the parents will have two different employers and they may find themselves in a difficult position if one employer agrees to the discontinuous leave and the other refuses. There is no need for the two employers to confer or reach agreement between them as to the pattern of leave to be taken.

The best advice that can be given to employees is to think about what pattern of shared parental leave they want and make the request early. If one of the employers then refuses a request for leave to be taken in blocks, they will have time to give fresh notice of continuous leave, for which the employer's agreement is not needed.

Good employers will want to develop a clearly worded policy that will guide employees through the process of taking shared parental leave. More important than a formal policy, however, will be communication. Employers should not be afraid to raise the topic of shared parental leave and ask employees what their plans are likely to be. This needs to be done in a supportive manner and with the understanding that the employee can change his or her mind. However, with good will and cooperation on both sides, there is no reason why shared parental leave will not run just as smoothly as maternity leave does now.

How much change the introduction of shared parental leave will mean in practice remains to be seen. There is still a strong cultural and social bias towards the mother's taking the leave while the father - after a short break - continues to work. We probably have a long way to go before mothers and fathers are taking equal periods of leave following the birth of a baby. Nevertheless, shared parental leave is clearly a step forward. It makes sense for parents to be able to take a more flexible approach to looking after a new baby and to share the care between them. The new right also has the potential to share the burden between employers so that leave is more evenly spread across the economy. Once we have got to grips with the new procedures, I think we will look on the introduction of shared parental leave as a good thing.

perspective@xperthr.co.uk