New Rights for Parents – Shared Parental Leave

New regulations come into force today (1 December 2014) introducing the concept of shared parental leave. The regulations aim to encourage flexibility in employment to enable both parents to play a greater role in the early stages of their child’s life or in the early post-adoption period.  Emma Reid, a solicitor practising in our Employment Law team, gives advice on these regulations and how they will affect both employees and employers.
 

What was the position before 1 December 2014?

Prior to the new regulations, in the first year of a child’s life after birth or the first year after adoption, parents were entitled to take some time off work. Mothers were entitled to 52 weeks of maternity leave after the birth of a child and 39 weeks of statutory maternity pay. Fathers were entitled to 2 weeks ordinary paternity leave and eligible to receive statutory paternity pay during this time. There were similar rules in place giving rights to leave and statutory adoption pay to adopting parents.

Additional paternity leave was introduced last year and entitles a partner to take 26 weeks leave if the mother has gone back to work.

What is changing?

The new law will entitle parents who qualify, to share between them up to 50 weeks of leave in a child’s first year. Of those 50 weeks, up to 37 weeks will be paid at the flat rate of statutory maternity pay and the entitlement to this pay can be shared too. This is slightly different from statutory maternity pay where mothers are entitled to receive the first few weeks at an enhanced rate of 90% of actual pay if this is greater than basic statutory maternity pay.

After the changes come into force, entitlement to maternity leave and paternity leave will remain the same, but the entitlement to additional paternity leave will be abolished. Parents will be able to use the new right to shared parental leave when the mother goes back to work, but there will remain a compulsory maternity leave of at least two 2 weeks for a mother after the birth of the child.

The rules will provide for a similar scheme for adoption and surrogacy situations.

When do the new shared parental leave rules apply?

Although the rules come into force on 1 December 2014, they will only apply to babies due on or after 5 April 2015. Similarly, the rules will also apply to children placed for adoption on or after 5 April 2015.

How flexible will parental leave actually be?

There are a few possibilities on how the leave may be taken. Shared parental leave must be taken in blocks of at least a week and all leave must be taken within 52 weeks of the child being born or placed for adoption. The mother and her partner can choose to be off work at the same time provided that the total period of maternity and shared parental leave does not exceed 52 weeks. Shared parental leave can be taken by both parents at the same time, by one partner after the mother returns to work, or the parents can take turns in utilising the time off.

How do employers plan for this?

The new rules contain requirements for employees to provide notice to their employers and to make certain declarations. The requirements include (amongst other things) the provision of information on the child’s date of birth, provision of a birth certificate, details of a partner’s employment and dates of the proposed leave intended to be taken by each individual. There are various deadlines built into these requirements to ensure that the information is provided timeously. The notice and declaration provisions are fairly complex and we would advise that employers take advice on these. There are also provisions that deal with the situation where parents change their mind after having indicated a plan to share parental leave.

Employers should note that employees will be protected from suffering a detriment if they request or take shared parental leave. This is, therefore, an area where employers will need to be particularly careful as they become familiar with the new rules, to avoid unwittingly leaving themselves open to a claim.

What do I do if this affects me?

The new rules contain some aspects which are fairly complex in how they interact with the existing regime and how they will work in practice.

If you are an employee wanting to explore your options we can give you detailed advice about your entitlement.

If you are an employer looking for advice on how to deal with specific requests, for a shared parental leave policy, other shared parental leave documentation or general guidance, or if you wish to advise your employees of their new rights, then we can assist with this and provide clarity on this complex new area.

ACAS have also published guidance which is useful for both employees and employers.

Please call us on 0131 554 8649 or email us at enquiries@elpamsolicitors.co.uk for a no-obligation discussion.