A new Shared Parental Leave (SPL) regime comes into effect in the United Kingdom from today, 1 December 2014.

The system will be available to eligible employees with a child due to be born on or after 5 April 2015.  It provides those employees with the right to share up to 50 weeks parental leave with the other parent.  SPL is available to the child’s mother and father, or the mother’s spouse, partner or civil partner.  We have referred to “mother”, “father” and “parent” here simply for convenience.

What is SPL?

The new regime allows the untaken balance of a mother’s maternity leave and pay entitlement, which totals 52 weeks leave and 39 weeks pay, to be shared by both parents as SPL and pay.

It is intended to allow parents greater flexibility in childcare during the first year, particularly as SPL can be taken by both parents simultaneously and/or by either parent in discontinuous blocks.

The only mandatory element is that a mother must take a minimum of two weeks compulsory maternity leave. As such, the maximum amount of SPL available to parents to share is 50 weeks, 37 of which can be paid.  The exact amount of SPL available will vary in each case, dependent on how much maternity leave and pay the mother has taken/intends to take.

How Does SPL Interact With Existing Family Leave Rights?

The existing rules on maternity and ordinary paternity leave will remain the same.

The additional paternity leave regime (introduced in 2011) will be abolished in respect of children due on or after 5 April 2015, but will remain in place for the parents of a baby due on or before 4 April 2015, even if the baby is not born until after that date.

The right to SPL will arise when an eligible mother brings her maternity leave to an end early, either by returning to work early or giving a “curtailment notice” indicating that she will end her maternity leave early at a date in the future.

When Can SPL Be Taken?

SPL can be taken from the date the child is born until any time before that child’s first birthday, subject, in the mother’s case, to compulsory maternity leave.

Who is Eligible to Take SPL?

In order to qualify for shared parental leave, both parents must

• Have main responsibility for the care of the child (aside from the responsibility of the other parent)

• Have complied with certain notice requirements

• Satisfy a continuity of employment test, i.e., 26 weeks service by the end of the 15th week before childbirth and still in continuous employment the week before any SPL is taken

• Satisfy an employment and earnings test, meaning the individual has been employed or a self-employed earner for 26 of the 66 weeks immediately preceding the week of birth with average weekly earnings of £30 in at least 13 of those weeks

• The mother must have curtailed her maternity entitlement.

How Does an Employee Apply For SPL?

There a variety of notices and declarations that must be given, though these can be submitted simultaneously.  The practical effect is that an eligible employee must give his or her employer at least eight weeks' notice before taking any period of SPL, but not necessarily any more notice than that.

SPL can be taken in a single continuous block, or discontinuous blocks interspersed with time in the office.  In either case, SPL must be taken in periods of complete weeks.

How Many Leave Requests Can an Employee Make?

An employee can give a maximum of three notices to book SPL, or to vary a previously agreed pattern, unless the employer agrees to more.  Each of the three notices can be for either a continuous or discontinuous period of leave.

Can an Employer Refuse a Request For SPL?

An employer is not entitled to refuse a single continuous block request, but will be able to refuse a discontinuous period.

Does The Same Regime Apply to Adoption?

Yes. Equivalent provisions apply to parents of children placed for adoption on or after 5 April 2015.

What Should Employers Do Now?

Employers should review their existing policies now to account for the new SPL regime.  Options include introducing a new standalone SPL policy to sit alongside existing family leave policies (which should be tweaked accordingly) or taking the opportunity to create an integrated, holistic family leave policy.

Those employers who currently offer enhanced maternity arrangements should also consider whether or not to extend the same benefits to employees taking SPL.  There is no statutory obligation to enhance SPL, but it is possible that employees may try to base a discrimination argument on any distinction between maternity and SPL pay.  An employer’s rationale for not uplifting SPL in the same way would be relevant and, of course, better thought about now, rather than when faced with a claim.

A final point to note is that protection from detriment and/or dismissal in connection with SPL comes into force immediately from 1 December 2014.  This is unlikely to arise but, for example, it will be unlawful to dismiss an employee, or subject him or her to any detriment, because the employer believes that he or she is likely to take SPL.

This alert provides only a summary of the new regime.  We plan to cover it in greater detail at our next seminar in early 2015.