Shared parental leave – who’s left holding the baby?

Next month new rules will come into effect about shared parental leave which are intended to offer greater flexibility to parents in terms of their options for caring for their new-born or adopted children.

From 5 April 2015, some parents will have the ability to utilise the new ‘Shared Parental Leave’ regime which will allow parents to split up to 50 weeks’ off work having a baby or adopting. The first two weeks of compulsory maternity leave will remain the preserve of mothers but it will then be possible to effectively transfer some, or all, of the remaining period of leave to the father, meaning parents can soon decide to take some time off together and/or alternate periods of leave to look after their children.

Supporters of the new rules advocate that their introduction will challenge the traditional stereotype that women will inevitably be the parent that stays at home when children arrive and hope that it will encourage more evenly balanced expectations of parents’ roles. However, the new scheme has been met with significant criticism on a number of fronts. Critics are keen to point out that the eligibility criteria will mean that the right will only be available to couples if both parents work, which may preclude up to 40% of fathers because the mothers do not have paid jobs, according to a recent TUC study. Furthermore, given the low uptake of Additional Paternity leave, which saw less than 1% of eligible fathers use the statutory mechanism for more time off according to the TUC study. Perhaps unsurprisingly some the most vocal criticism has come from employers, particularly small businesses, who remain concerned about costs implications and the potential disruption to their business.

To qualify, the mother/adopter must be entitled to some form of maternity/adoption entitlement, have given notice to limit and must share main childcare responsibilities with the named partner, as well as meeting certain continuity of service criteria – the parent 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 the week in which an adopter was notified of having been matched) and is still employed in the first week that Shared Parental Leave is to be taken. The other parent must also meet statutory criteria; in particular, they must have worked for at least 26 weeks in the 66 weeks leading up to the due date and have earned above the maternity allowance threshold of £30 week in 13 of the 66 weeks.

Shared Parental Leave may be taken at any time within the period beginning on the date the child is born/date of the placement and ending 52 weeks after that date. Other than fairly limited expectations, once the decision has been taken to opt for shared parental leave, employees cannot change their mind. Parents will be required to give their employer eight weeks’ notice of their intention to take shared parental leave and, if they do not want to take their leave all at once, they may make requests to their employer for up to three separate blocks of time off. Employers are unable to refuse shared parental leave taken continuously but they do have the option of refusing discontinuous blocks of leave if the employee’s proposal would cause disruption to the business.

Employees’ pay will be at the statutory level under the new rules, unless employers offer an enhanced package. Currently, the statutory rate is 90%  of average weekly earnings before tax or £129.58 a week (from 5 April 2015), whichever is lower. It is widely agreed that a key factor which will dictate the degree of take up of the new rights will be whether employers decide to offer enhanced shared parental leave pay, in a similar way to other family rights or not.

Employers are being advised to familiarise themselves with the new rules sooner rather than later and to consider implementing new staff policies  to set out the rules, procedures and eligibility criteria. Whilst there is no statutory requirement that a Shared Parental Leave Policy should mirror existing occupational schemes, it is important to remember that all policies need to be non-discriminatory, particularly in their impact upon men and women. As such, seeking advice to ensure that maternity, paternity, adoption and shared parental leave policies – and the remuneration provided to employees under each of them – are consistent will help ensure that employers are acting in accordance with statutory requirements as well as minimising the risk of potential claims being made against them.

For further information relating to Shared Parental Leave please contact Robyn Aisbitt, Solicitor in Mincoffs Employment team on 0191 212 7717 or emailing raisbitt@mincoffs.co.uk