The Children’s and Families Act 2014 introduced a new entitlement for employees who are parents, to take shared parental leave (SPL) in the first year of their child’s life or in the first year after their child’s placement for adoption. SPL will be available in respect of children whose expected week of child birth begins on or after 5 April 2015 or who are placed for adoption on or after that date.
Current Rights to leave for Parents
Broadly these consist of the following:-
- Maternity Rights
- Paternity Rights
- Adoption Rights
- Unpaid Parental Leave
- Emergency time off for dependent care
Parents will not be obliged to take SPL once the new scheme comes into force. The default position on the birth of a child will be that the 52 weeks’ of maternity leave remain in place for the mother. The default position on the adoption of a child will be that the primary adopter will be entitled to 52 weeks of adoption leave.
Parents will be able to take SPL in the following circumstances:-
- In relation to births, a mother who is entitled to statutory maternity leave, statutory maternity pay, or maternity allowance, may curtail her entitlement so that she and the child’s other parent may share the balance of the leave, pay, or allowance period as SPL.
- In relation to adoptions, a primary adopter who is entitled to statutory adoption leave or statutory adoption pay, may curtail their entitlements so that they and the child’s other adoptive parent may share the balance of the leave or pay period as SPL.
Do both parents need to be employees?
The Government’s policy is that both parents must be economically active: where one parent seeks leave from employment, their partner must have worked in an employed or self-employed capacity in at least 26 of the 66 weeks immediately before the EWC or the week they were notified of the adoption match, earning on average at least £30.00 a week based on any 13 of those weeks. So, where a mother is an employee but the father is self-employed, or unemployed having recently lost his job, the father will not technically qualify for SPL as he has no employer. However, because the father has been economically active, the mother is not restricted to taking maternity leave; she will be able to access the more flexible SPL scheme. This means that she will be able to take part of her maternity leave, go back to work, and then take a further period or periods of SPL at a later date, up to 52 weeks after birth. Alternatively, where a father is an employee, but the mother is self-employed or recently unemployed, the mother has no maternity leave or SPL entitlement herself, but will qualify for maternity allowance. By curtailing her entitlement to maternity allowance, the mother will be able to give the father access to the SPL scheme, meaning he can take a period or periods of SPL.
How will the right to take SPL work?
The new scheme will make up to 50 weeks of SPL and 37 weeks of pay available for eligible parents to take or share (that is, everything other than the compulsory 2 week maternity leave period or an equivalent 2 week period in adoption cases). A mother or primary adopter will be able to end their maternity or adoption leave, or commit to ending it at a future date, and share the untaken leave with the other parent as SPL. This will enable mothers and primary adopters to return to work before the end of their leave without sacrificing the rest of the leave that would otherwise be available to them. SPL can either be taken consecutively or concurrently, as long as the total time taken does not exceed what is jointly available to the couple.
Clearly SPL will be a complex new scheme for employers to understand and administer before, during and after the SPL period. For advice or assistance in relation to managing employees within this new scheme or any other employment law matter please contact Julie Dalzell who is a Senior Associate within Jacksons Employment Law Team.
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