Shared parental leave - the countdown has begun

By Emma Swan, employment partner, Taylors Solicitors

With less than eight months to go, the first employees entitled to the benefits of shared parental leave (“SPL”) will be imminently making their employer aware of their, or their partner’s, pregnancy.

Under the new SPL rules, parents will be able to share statutory maternity leave and pay. SPL represents a major departure from the current regime and is being introduced in an effort to give parents greater flexibility in how they care for their children.

The new SPL system applies to parents who meet the eligibility criteria and whose child’s expected week of childbirth begins on or after 5 April 2015, or who are matched or placed for adoption from that date. Whilst the mother is still required to take the first two weeks post-childbirth as leave for health and safety reasons, the remaining 50 weeks of leave and 37 weeks of pay can be shared by both parents. Parents can decide how the leave is shared and can even take it together if they wish. This must be negotiated with their respective employers, who will be unable to refuse the leave entirely.

The big questions for employers

What are the key dates?

September 2014

• Employees are likely to let their employers know informally that they are pregnant following the first scan at 12 weeks, and that the expected week of childbirth begins on or after 5 April 2015.

1 October 2014

• An individual has the right not to be dismissed or subjected to detriment for proposing to make use of the new SPL scheme. Fathers will have a new right to take unpaid leave to attend up to two antenatal appointments.

December 2014

• Parents could potentially qualify for SPL from December 2014, if their child is due from April 2015 but is born prematurely.

8 February 2015

• Employers should start to expect to receive notices from women or men of their intention to take SPL.

5 April 2015

• The relevant date of when childbirth is expected either on or after this date,

19 April 2015

• As a woman is required to take 2 weeks' compulsory maternity leave, this is the earliest date on which the partner of a woman who gives birth on 5 April 2015 can take SPL.

Won’t this get confusing?

Employees are obliged to comply with certain notice requirements to their employer: employees will have to give eight weeks’ notice of their intention to opt-in to SPL and of any subsequent request for leave; when a couple initially opts-in to the SPL system, they will have to give a non-binding indication of how they are intending to take their SPL; the number of notifications or changes to SPL that employees will be able to give will be limited to three, unless the employer is willing to allow more requests; employers will not be obliged to agree to the leave pattern proposed by their employees. The default position where agreement cannot be reached will be for an employee to take their share of the leave in one continuous block; SPL will have to be taken within 52 weeks of a child’s birth.

What about existing maternity rights?

Existing maternity rights remain totally unaffected if the mother chooses to take this rather than SPL. This means that women who qualify for statutory maternity leave and pay can still take 52 weeks' leave and receive 39 weeks' statutory maternity pay.

Will there still be keeping in touch days (KIT)?

20 days' work will be available to each parent during SPL. This will be in addition to the KIT days a woman can take during maternity leave

Will the employee's job still remain?

The right to return to the same job will apply to employees returning from any period of leave that includes maternity, paternity, adoption and SPL that totals 26 weeks or less in aggregate, even if the leave is taken in discontinuous blocks. In all other cases, the right is to return to a similar but not identical role.

Are there any risks?

The impact of the new SPL system is yet to be realised although concerns have been raised that: - employers could be left open to discrimination claims from fathers seeking parental rights that mirror those available to mothers (i.e. enhanced pay for women that fathers may not get); - employers may be affected by uncertain work patterns and find managing various employee requests unmanageable. - an employer may employ both the mother and partner, which may cause practical issues.

Guidance is awaited from the Government on whether employers should mirror making enhanced maternity pay provisions for employees taking parental leave, however it has historically taken the view that not offering enhanced paternity pay would not amount to unlawful discrimination. This is on the basis that women have special protection as a result of their biological position as the mother, which can justify the different treatment and different pay. However the ECJ has issued a ruling in the case of Roca Alvarez v Sesa Start Espana ETT SA concerning a Spanish scheme, which allowed parents to take time off work to look after a child but that was applied differently to women and men. A woman who was employed qualified for the time off but employed fathers were only entitled to the leave if the mother of the child was also an employee. The ECJ ruling found that this resulted in sex discrimination. Time will tell if it is decided that the same analysis is applied to SPL.

How should we prepare?

In planning to deal with some of these concerns, as employers you should start considering the following:—

- Review your current family friendly policies to ensure your systems are ready to process requests for SPL by 1 December 2014.

- Consider whether you will provide enhanced pay for those taking SPL and if so, will this be at the same level as any enhanced maternity pay you may pay.

- Think how you may be able to arrange adequate cover for employees who may take SPL, particularly for discontinuous parental breaks;

- Be prepared to deal with the situation where two employees in the same department are expecting a baby together and wish to take SPL simultaneously. - Train line managers on the rights under SPL. You must ensure line managers and HR respond to requests properly and consistently to mitigate challenges from employees and reduce the risk of discrimination claims.