Shared Parental Leave (“SPL”) was introduced in April 2015 meaning employers and employees alike are still getting up to speed on the changes while organisations are waiting to see what the interest levels and subsequent impact will be. Rebecca Hill from Reading-based solicitors Blandy & Blandy explains.

Shared Parental Leave (“SPL”) encourages the sharing of “family” leave between working parents during the first year of birth, adoption or surrogacy and enables an eligible parent, primary adopter or intended parent to opt into the new system of SPL, curtail maternity or adoption leave early and share the balance of the leave with an eligible partner in accordance with the rules on SPL.

SPL and shared parental pay (“ShPP”) are available for working couples who share the main responsibility for caring for the child. A “mum” can share parental leave with the child’s “dad” (even if they don’t live together), their spouse, civil partner or partner who lives with them. It applies in relation to children born, placed for adoption or the subject of a surrogacy parental order, on or after 5 April 2015. SPL must be taken in the 12 months following birth or adoption.The provisions relating to statutory maternity leave and pay, ordinary paternity leave, adoption leave and pay continue as before and run alongside SPL.

Trigger – to trigger the right for SPL for one or both parents, the “mum” (or primary adopter) must be employed, entitled to maternity or adoption leave (or pay or allowance), have curtailed (or given notice to reduce) that leave, have properly notified their employer of their entitlement and have provided the necessary declarations and evidence.

 Eligibility – SPL will be available where both parents are “economically active” – a “mum” (or primary adopter) wanting to take SPL is required to satisfy the ‘duration of employment test’ (continuously employed for 26 weeks up to and including the 15th week before the week in which their baby is due or placed for adoption) and the “dad” (or secondary adopter) must meet the ‘employment and earnings test’ (worked in an employed or self-employed capacity in at least 26 of the 66 weeks before the expected week of childbirth or adoption, earning on average at least £30 a week based on the highest earning 13 of those weeks).

Entitlement – if a parent is eligible they can take the remaining maternity/adoption leave as SPL (52 weeks minus any weeks of maternity or adoption leave) and the remaining pay as ShPP (39 weeks minus any weeks of maternity or adoption pay or allowance) albeit that a birth mother is obliged to take the first 2 weeks as compulsory maternity leave and pay (so, in fact, she can only share up to 50 weeks leave and up to 37 weeks’ pay).

Notification requirements – the notification requirements governing the content and timing for the various notices are prescriptive. The “mum” (or primary adopter) must provide a curtailment notice giving 8 weeks’ notice stating the date on which her statutory maternity leave is to end, and both the “mum” (or primary adopter) and “dad” (or secondary adopter) must serve a notification of entitlement and intention to take leave to their respective workplaces plus a declaration about their partner’s notification of entitlement and intention to take leave. Both the “mum” (or primary adopter) and “dad” (or secondary adopter) must then both submit a period of leave notice in order to fix the dates.

Leave periods – the employee can book a maximum of 3 separate blocks of leave (unless the employer agrees more). Both parents can be on SPL at the same timeorthey can stagger it. Requests can be for continuous or discontinuous leave; if the request is for continuous leave it must be granted, but if it is for discontinuous leave an employer is not obligedto agree it.

Pay – ShPP broadly mirrors maternity pay ie 6 weeks at 90 percent of average weekly earnings (or the statutory rate – whichever is lower) and the remainder at the statutory rate (which is £139.58 a week unless an employer offers an enhanced ShPP scheme). Although not yet tested in legal terms, there is a potential risk that if an employer pays enhanced maternity pay to women, it could be indirect sex discrimination if an employer did not offer the same enhanced ShPP to men, essentially because women can elect to be on maternity leave and stay on enhanced pay whereas men cannot.

Keeping in touch – both parents can book up to 20 Shared Parental Leave In Touch (“SPLIT”) days each during their shared parental leave (if the employer agrees). Benefits – benefits continue apart from pay(and annual leave entitlement continues to accrue). Return – parentshave the right to return to the same job if the total block of SPL is 26 weeks or less, or the right to return to the same or a similar job if the SPL is more than 26 weeks.

For employers – businesses should: prepare policies, forms and guidance on SPL, including how to make requests and the circumstances in which requests for discontinuous leave will be accepted; decide whether to offer enhanced pay; communicate this new right to employees; train line managers on SPL including how it will operate and how to respond to requests.

For employees: This may not quite be the giddy step toward a gender-equal utopia it at first might seem given that finances may dictate that, for many couples, it’s business as usual (unless an employer offers enhanced ShPP). However, it is a step in the right direction towards challenging the norm for new working mothers or adopters and fashioning a generation of nurturing fathers. Rebecca Hill is a specialist employment law solicitor at Blandy & Blandy. She advises senior management and HR professionals on all strategic HR issues and complex employment situations and undertakes a range of contentious and non-contentious respondent and claimant work.