How many employers are prepared for the new shared parental leave regulations?

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New rules are set to come in to force allowing parents to share their maternity and paternity leave for a year after the child is born.

Whilst the new shared parental leave regulations only apply to babies due on or after 5 April 2015 (or children who have been matched for adoption or placed for adoption on or after this date) the actual regulations come into force on 1st October 2014.

Therefore, employers will shortly need to get up to speed with these complex new regulations; revising their current documentation and polices to ensure they are compliant with them.

How will the regulations change?

Under the current regime entitled mothers can take up to 52 weeks off work as maternity leave, with 39 weeks of that leave being paid.  Likewise, fathers are able to take 2 weeks of ordinary paternity leave and then a further 26 weeks as additional paternity leave to be taken after the mother has returned to work and no earlier than 20 weeks after the birth of the child.

The new regulations will allow both parents to share up to 50 weeks’ leave, following the mother’s 2 weeks’ compulsory maternity leave.  They effectively give parents the flexibility to choose how they share care for their child in the first year after birth.  Whilst, the right to ordinary paternity leave will remain, the additional paternity leave provisions are being abolished.

The purpose of the new regulations is to provide parents with flexibility on how they structure child care arrangements, allowing fathers to engage in caring for their child at a very early stage. The government’s intention is to try and facilitate a shift in the entrenched view of the mother as the primary carer, eliminate gender bias, reduce the gender pay gap, and achieve equal participation of the sexes in the workplace.

The new regulations set out numerous conditions that a mother, father, or adopter and their partners, must satisfy to be entitled to take shared parental leave. These include substantive conditions (such as satisfying an economic activity test), as well as procedural requirements (such as providing appropriate notices).

The principal eligibility requirement is that the parent who wants to take shared parental leave must have 26 weeks service with their employer by the end of the 15th week of the EWC (expected week of confinement).  The parent taking the leave must also have a working partner and confirm their partner has been employed or self-employed for 26 weeks before the EWC and that they have earnings of at least £30 per week in the last 13 weeks of those 26 weeks. The mother can only share parental leave with one person and cannot share with just anybody. The person must be either the child’s father, mother’s husband or civil partner, or a partner living in an enduring family relationship.

The shared parental leave must be taken in blocks of at least a week.  However, it can be taken discontinuously, allowing an employee to take a period of shared parental leave, come back to work and then elect to take a further period of leave at a later date.

Due to the way the system is modelled for parents, it is also possible for the mother and partner to take shared parental leave together and therefore be absent at the same time. But all leave must be taken before the child’s first birthday.

Giving Notification

Employees intending to take shared parental leave must give their employers notices to do so, however the rules are complicated.

An employee must firstly provide written notice to their employer that they wish to take shared parental leave, the mother effectively providing notice that she wishes to discontinue or curtail her maternity leave and opt into shared parental leave. There is no requirement as to when this notice has to be given.

The notice will confirm their partner satisfies the economic activity test and will inform their employer of how they are going to share the leave and the amount each is going to take.  It will also inform the employer how they intend to allocate the shared parental pay.

Under the regulations there is an entitlement to 37 weeks of shared parental pay to those eligible, although this is at the statutory flat rate. The pay regime is similar to statutory maternity pay, but inherently more complex due to the nature of shared parental leave.

The employee then has to provide their employer with a second written notice in order to actually book the time off.  The notice must be given 8 weeks before the leave starts, state when the employee wants the leave to start and how much leave they want to take.

The employee has a right to take those dates specified where shared parental leave is being taken in one block, the employee by law is entitled to that time off.  However, where discontinuous leave is requested by an employee and it is not acceptable to the employer, for instance if it would be too disruptive to the business, it may be refused.

The employer could propose propose alternative dates or refuse the request altogether, in which case the employee will be entitled to one continuous period of leave or withdraw the notice to enable their spouse or partner to take the leave instead.

It is predicted that the level of take up of shared parental leave will be low, due to current levels of additional paternity leave take up and also because female employees may prefer to remain the primary carer, whilst men continue to dominate the top wage brackets and the level of statutory shared parental pay remains low.

Nevertheless, employers should prepare themselves for the imminent changes and be fully conversant with a series of complex eligibility requirements and notifications, in the event one of their employees does decide to take shared parental leave with their spouse or partner.

Get the latest advice on the shared parental leave regulations

If you would like to discuss your rights relating to the new shared parental leave regulations, get in touch with our expert team of employment law solicitors today. Call us today on 01282 695 400 or if you would like to request a call-back, simply complete the online contact form on our website and we will be in touch with you as soon as possible.