1. What is it?
Parents (see definition below) can take the 52 weeks Statutory Maternity Leave (SML) period which a mother currently enjoys and share this between them. The father can also add his two week Ordinary Paternity Leave (OPL) period and make a total of 54 weeks leave available.
A few points:
- the mother must take the two week period after the birth of the child either as SML or SPL
- the father can only take the OPL within 8 weeks of the birth. M can only start the period of SPL after the birth and can take pre-birth time off as SML but this will reduce the amount of SPL available.
It is only available to parents of children with an expected week of childbirth of 5 April 2015 or later. If the child has an earlier expected week of childbirth the parents do not qualify even if the child is born after 5 April 2015.
2. Who is entitled to it?
a. Mothers (M) and primary adopters who will be primarily responsible for the care of the child; and
b. The father of the child or, if different; the spouse, civil partner or other partner of the mother who together with the mother is primarily responsible for the care of the child (P).
For brevity I will refer to them jointly as parents.
To qualify for SPL both the mother and father must:
- have been in work for 26 weeks prior to the 14th week before the expected week of child birth (compare this with SML for which there is no qualifying requirement)
- have responsibility for the care of the child
- be employed at the date of birth although this would include mother absent on SML
- earn at least £30 per week for at least 30 weeks during a period of 66 weeks prior to birth
- have given the appropriate notices to each employer.
Note that the mother cannot take both SML and SPL together. Although she may have started SML she must bring this to an end before starting SPL. This is known as curtailing SML and is done by sending a written note to her employer giving at least 8 weeks notice of bringing SML to an end.
P can start SPL anytime after the birth and after M has provided an SML curtailment notice and can even take SPL during the period of notice bringing SML to an end.
3. How much leave?
As mentioned above, it is the intention that the parents share the 52 week SML period. However, the total time taken off for SML and SPL cannot exceed 52 weeks and therefore any time taken for SML will be deducted from the period of 52 weeks available to be shared between the parents as SPL.
4. What are the notices the employee has to give?
There are two principal notices which the parents will need to serve on their employer. The first is a notice of entitlement and the second is a notice of commencement of SPL. Those notices have to be served on the employers of each of the parents. In practice it is likely that the two notices will be combined.
a) Entitlement notice:
i). Notice of entitlement must be in writing and confirmed to M’s employer;
- M’s name
- P’s name
- What period of SML has or is being taken including start and end dates
- The amount of SPL available – this will depend on the SML taken or intended to be taken.
- Expected week of child birth and/or date of birth of the child
- How much SPL M & P intend to take
- An indication of when the SPL will be taken with start and end dates
- A declaration by M that she satisfies the conditions for SPL, that the information in the notice is correct and that she will inform the employer if she ceases to have responsibility for the care of the child.
ii) P joins in the notice to state:
- His name and address
- His National Insurance number
- Declaration that he satisfies the conditions and eligibility for SPL, if he is the father (or the other qualifying relationships entitling him to SPL)
- That he consents to M taking SPL and he consents to his employer processing such information in this declaration.
P must send a notice to his employer in the same terms with the roles reversed.
These notices provide the respective employers with details of the eligibility of the employee to take SPL and an indication of the SPL being taken. The employer can seek further evidence from each of M and P being a copy of the birth certificate and the name of the other parents employer. Such request must be made within 14 days of receipt of the entitlement notice.
M and P can send a further notice varying information in a note. I imagine the most likely reason for serving a variation notice will be to alter the expected dates of the SPL.
b. The start of SPL.
M and P start their SPL by giving their employer written notice of the date upon which they intend SPL to start and finish. This note must be given at least 8 weeks before the first start date. The notice can provide for one continuous period of leave or more than one period of leave.
The notice can be given before birth but SPL cannot start until after birth. It can, however, refer to a start date by reference to a given number of days after birth.
If the notice requests one period of continuous leave then the employer must accept this.
If, on the contrary, the notice is for a series of periods of leave, (referred to as discontinuous leave), then the employer can either accept the proposal, refuse it or suggest alternative periods. The employer must do this within 14 days of receipt of the notice of start of SPL.
If the employer suggests alternative dates and this is agreed then they take effect.
If the employer declines the alternative date the employee must then either:
- withdraw the notice (but must do so within 14 days of the response from the employer), or
- take the total amount of leave requested in one continuous period.
In practice it is likely that parties will discuss the entitlements and periods of leave with their employer and come to an agreement early on.
If the parents, having given a date for SPL to start, wish to change this date they can do so by giving the employer written notice of change. The notice must state:
- The period of SPL they are entitled to;
- The variation sought (could be a change in start dates, end dates, or both); and
- The mother must be given at least 8 weeks notice before both the present start date and the proposed start date.
As before, if the variation proposes discontinuous leave, the employer can object or suggest alternative dates and the same provisions apply as above.
d Period of leave notices
The employee can only give 3 periods of leave or variation notices but there is excluded from this count, any notices which is withdrawn and a variation notice arising because a child was born late.
Again these provisions encourage employers and the parents to get together and discuss the issues as early as possible.
Referring back to the complexities of discontinuous leave, it appears open to a parent to serve three separate notices seeking three separate but continuous periods of leave, As they are continuous the employer must accept them. This may circumvent the restrictions on discontinuous leave.
5. What about pay?
At present, the mother on SML is entitled to 39 weeks SMP. As the SML period is being shared between the two parents, the parents can share the SMP period and receive Shared Parental Pay (SPP). Parents will qualify for SPP if they also qualify for SPL.
Note that SPP is paid throughout at the flat rate, currently £138.18 per week. Under SMP the mother is entitled to 90% of her salary during the first 6 weeks of SML. The balance of 33 weeks is then paid at the flat rate. This will encourage mothers to start leave on SML claiming the first six weeks SMP at 90% and then move over to SPL and receive SPP.
6. Issues during leave
Any employee taking SPL will continue as an employee and retain all contractual rights other than pay. Each parent taking SPL is entitled to 20 Shared Parental Leave In Touch (SPLIT) days. These are separate and additional to KIT days.
7. Return to work
As with SML, a parent taking SPL is entitled to return to work and similarly there is a distinction between leave of 26 weeks or less and leave of more than 26 weeks.
Where a parent has taken 26 weeks or less as leave, including any period taken as SML, there is an absolute right to return the job undertaken before leave commenced.
Where the total leave exceeds 26 weeks, there is a right to return to the same job unless it is not reasonably practical for the employer to arrange for this.
An employee must not be treated to his/her detriment by an employer for taking or seeking to take SPL or in circumstances where an employer believe that an employee is likely to take SPL.
Furthermore a dismissal in which the reason or principle reason is the taking of SPL will be automatically unfair.
9. Unusual circumstances
If M dies before curtailing SML, as long as she otherwise satisfies the conditions for SPL, P can take SPL for the remainder of the 52 week period allowing for any SML taken by mother.
If P dies after the issue of the entitlement notice, M or P can take SPL but cannot vary it save from bringing SPL to an end early and cancel SPL entirely. In either case they will still be required to give 8 weeks notice of such variation.