Holly Dobson helps to demystify the new regulations and sign posts some useful resources. Summary
- In force from 5 April 2015 and applies to all births and adoptions.
- Parents\Partners now have option of sharing parental leave for up to 50 weeks in the first year.
- Full weeks not part weeks.
- Up to three blocks of leave
- Protection from Unfair Dismissal and Detriment when exercising the right.
Useful Resources
- We've drafted policies already for many clients. Follow the bespoke policies! If you need any certification or self-certification forms let us know.
- BIS ready reckoner for parents
www.gov.uk/pay-leave-for-parents
- BIS Technical Guides
www.gov.uk/government/publications/shared-parental-leave-and-pay-employers-technical-guide www.gov.uk/shared-parental-leave-and-pay-employer-guide/overview
- There is also a (lengthy) ACAS Guide, but the BIS guides are worth downloading.
Untangling the new law The new law is actually made up of a raft of separate regulations and these aren't easy to navigate. What you need to know as an employer is:
- Whether your employee is eligible.
- Whether your employee's partner signs to self-certify they are also eligible.
- What the new rights are.
- What the procedures are.
There are some relatively complex eligibility requirements which both 'parents' must comply with. I say 'parents' as the Regulations cover a wide variety of primary and secondary carers or adopters. Essentially, every couple who between them care for and rear the child are given these new rights. The good news for you as an employer is that provided your employee's partner signs the appropriate eligibility declaration you don't need to check their eligibility further. That role will be carried out by HMRC on a 'risk managed basis'. So three key points:
- First, the mother (primary carer) must make the decision to shorten the maternity leave and pay (or maternity allowance). The 50 weeks available to share take into account the two weeks compulsory maternity leave (it will be 48 weeks where factory work required the compulsory leave to be 4 weeks).
- Secondly, you need to check that your employee satisfies the employment of earnings test. If your employee is the mother then she must satisfy that test and have been continuously employed for a minimum of 26 weeks ending with the immediately preceding the 14 week before birth\adoption and remain in continuous employment until the week before any shared parental leave.
The other parent certifies that they either pass the employment and earning test or a second test being the continuity of employment test. If your employee is the father\secondary carer then both they and the mother\primary carer must pass the employment and earnings test. A couple can still take advantage of the shared parental leave where the relevant employee passes the employment and earnings test and the secondary carer certifies that he passes the continuity of employment test. He must have been an employed or self-employed earner for any part of the week in at least 26 of the 66 weeks preceding the birth\adoption and in 13 weeks of the past 66 have an earned an average statutory minimum and paid class one or two national insurance contributions or hold an exemption certificate. As an employer you will be focusing on whether your employee passes the employment and earnings test and all you will need is the appropriate self-certification for the non-employed partner.
- Thirdly, the mother having elected to cut short her maternity leave and pay and the relevant eligibility requirements having being certified you will need to know about the procedural requirements. Again, these are not particularly easy and consist of three separate notices which can all be given at once.
Notice requirements The first notice is the 8 week written notice to end the maternity leave and maternity pay (maternity allowance) and return to work. So this is the mother's decision to curtail her maternity leave rights. The second procedural requirement is the intention to take shared parental leave notice. This is the notice by mother\primary carer or adopter notifying you of their intention to take shared parental leave with the other parent's consent\declaration that they have served intention notice on their employer where that is applicable. Alternatively it is the secondary carer's intention notice served on you. You have a short window of time under the regulations to request certain evidence if you wish. The third notice is the 8 weeks written notice of the date of the actual intended leave. That could be the entire 50 weeks and the part of the father if he so chooses. As the shared parent leave can be taken in up to three blocks it could be the first of one, two or three blocks of leave. The leave can be taken any time in the first year, it has to be a minimum of one week. Under the shared Parental Leave Regulations the leave can be managed so that both parents are away from work actively parenting together at the same time. If the leave required is continuous leave then you must grant the leave if the eligibility and notice requirements are met. Only if it is discontinuous leave ie a request for a three week period off and then a week back at work, for example do you have limited right to propose alternatives. You must exercise that right within two weeks of the notice either proposing alternative dates or refusing. In the event of you refusing then the employee has to take a block of continuous time or withdraw the notice. You will need to exercise care on checking the notice requirements and the circumstances in which you can propose alternatives or refuse. Other points to note Don't forget that under the shared parent leave law the parent exercising the rights has the same statutory protection as maternity leave during the first 26 weeks of leave ie the right to return to the same role. Contractual rights remain including holidays. You will need to decide how you are going to cover the employee's absence. KIT (keeping in touch days) remain but the regulations now introduce S.P.L.I.T (shared parental leave keep in touch days). An employee may work for up to 20 days during the shared parental leave period for each of their employers without bringing their leave to an end. Those are separate and additional to any KIT days that a woman has on maternity leave. In terms of resourcing your business you may well find that the KIT and S.P.L.I.T days are very useful. For example there may be a peak period of time when you need the employee to be present and that can be arranged without losing the shared parental leave rights. Overlap with other rights Additional paternity leave and pay will not be available in respect of babies born or placed for adoption after 5th April and unless parents qualify for and opt into the shared parental leave (SPL) being the only entitlement that the secondary parent will have will be the two weeks ordinary paternity leave and pay. Because the previous regime of additional paternity leave and pay will still apply for parents exercising the rights where the child was born in placed for adoption before 5th April we will have two simultaneous regimes applying until Mid-April 2016. If you have managed to stay with me to the end of this article you will realise that I haven't even touched upon shared parental pay! I shall leave that for another day. For further information please contact Holly Dobson at [email protected] or on 0114 2666660.
