Shared parental leave and pay

Graham Richardson looks at the new statutory provisions on shared parental leave and pay, due to come into force on 1 December 2014.

The 2010 General Election saw both the Conservatives and Liberal Democrats promise to introduce a more flexible system allowing both parents to take leave on the birth or adoption of a child. 1 December 2014 will see the introduction of the new statutory provisions for shared parental leave and pay applicable in respect of babies whose expected week of childbirth begins on or after 5 April 2015. The proposed changes are potentially far-reaching, although whether shared parental leave will be taken up by many families remains to be seen.

Proposed changes

Under the proposed new regime employees who are parents (whether by birth or adoption) will be entitled to take shared parental leave (SPL) in the first year of their child’s life or in the first year after their child’s placement for adoption. The basic principle of shared parental leave is that after the birth of her child a mother may share her statutory leave entitlement in relation to the birth of that child with her partner. The scheme will apply in respect of children whose expected week of childbirth begins on or after 5 April 2015 or who are placed for adoption on or after 5 April 2015. 

Although shared parental leave will be available for adoptive parents, this article will focus on the rights of a biological mother and her partner to shared parental leave on the birth of her child.      

The amount of statutory leave that parents can take between them in relation to the birth of their child will be 52 weeks, but this includes a period of compulsory maternity leave which must be taken by the mother immediately after the birth. This is normally two weeks, but can be four weeks in certain industries (for example, factory workers). For shared parental leave to be taken, the mother must positively elect to curtail her maternity leave. The default position on the birth of a child will be that the 52 weeks of maternity leave will remain in place, subject to eligibility. 

Shared parental leave will not be able to be taken before the birth, and any shared parental leave must be taken within one year of the birth.

Eligible employees will still be able to take one or two weeks’ ordinary paternity leave (with ordinary statutory paternity pay) once shared parental leave is in force (unless he or she has already taken a period of shared parental leave in relation to the same child) but additional paternity leave and additional statutory paternity pay will be abolished under the new provisions. 

There will be complex eligibility rules for both parents to satisfy in order to be entitled to shared parental leave and statutory shared parental pay. 

There will also be legal notice requirements. A mother will usually have to give at least eight weeks' notice that she wishes to end her maternity leave and pay and start a period of shared parental leave.

Employees will not have to take their entire shared parental leave entitlement in one go. Instead they will be entitled to take their shared parental leave in up to three separate blocks (provided that they meet the necessary notice and eligibility conditions). It should be noted in this respect that in certain circumstances a request to vary a shared parental leave arrangement that has already been booked may count as a separate request, reducing the number of blocks of leave that an employee would have a statutory right to take (if they were intending to take their leave in separate blocks).

While employers will be able to agree to shared parental leave arrangements which go beyond three separate blocks of leave, they will not be not statutorily obliged to do so. However, employers  will of course be required to deal with any employee requests for discontinuous leave arrangements fairly, consistently and reasonably, and to comply with their own policies and procedures. The minimum block of shared parental leave that will be able to be taken is one week.

Both parents will normally have to give their employers at least eight weeks' notice for each period of leave which, in the case of discontinuous leave requests going beyond the basic statutory entitlement, will include a two week discussion period to discuss the pattern of leave with their employer. They will have to complete a form to notify their employer that they wish to take shared parental leave and their partner will have to complete a declaration. 

Employees who take shared parental leave will be entitled to benefit from all of their terms and conditions as if they had not been absent, with the exception of remuneration. The rules in this respect will be similar to those applying during statutory maternity leave. Up to 20 SPLIT (Shared Parental Leave In Touch) days will be available (on top of any KIT days during maternity leave). SPLIT days will not extend the period of shared parental leave.

Draft legislation on the amount of shared parental pay indicates that the weekly rate of statutory shared parental pay will initially be the lower of £138.18 or 90% of earnings.

Difficult areas

Employers are concerned about how complex the new system of shared parental leave will be, as well as the administrative burden that it may create. There is also a concern that it will be difficult to arrange cover for a number of shorter periods of leave.  Inevitably it will take employers a while to get used to the new arrangements.

There is concern about the practicalities and legalities of talking to the other parent’s employer to discuss leave arrangements. There is no legal requirement for employers to make contact with the other parent’s employer, but they are entitled to ask employees requesting shared parental leave for the name and address of the other parent’s employer, and the employee must provide this when requested. Any employer who chooses to make contact with the other parent’s employer will need to ensure that they comply with their obligations under the Data Protection Act and that they only ask appropriate questions..

A number of legal commentators have raised the question as to whether it might be discriminatory for an employer to enhance statutory maternity pay for women, but only to pay the statutory minimum shared parental pay. If an employer chose to enhance shared parental pay for women but not for men then this would be very likely to be discriminatory on grounds of sex. But what if an employer provides only statutory shared parental pay for both women and men, but offers enhanced maternity pay for women? It is at least possible that a male employee could seek to bring an indirect sex discrimination claim, on the basis that the practice of enhancing maternity pay but not shared parental pay has a disproportionately negative impact on men, who do not have the option of electing to receive maternity pay. If the male employee was able to establish a prima facie case then the employer would have to demonstrate that the less favourable treatment was justified.

The Government appears to take the view that such a sex discrimination claim would not succeed, but this is yet to be tested in the courts. In practice it may well be likely that such a legal claim will be brought by someone, and if this does happen then the outcome of the litigation will be followed with interest by employers throughout the country. In the meantime, while some employers are intending to enhance shared parental pay in the same way as maternity pay from the outset, anecdotal evidence suggests that many employers who enhance maternity pay are intending to adopt a “wait and see” approach to shared parental pay, by initially providing statutory shared parental pay only, and only to enhance shared parental pay if case law subsequently suggests that they are legally required to do so. Whether this proves to be an advisable approach remains to be seen.

Brave new world?

The new shared parental leave regime has the potential to change fundamentally the leave arrangements of new parents, and to create a wide range of practical and legal challenges for employers. Whether it will in reality have such a radical impact remains to be seen. How many parents will take advantage of the new flexibilities that will be available to them? The Government estimates a take up of somewhere between 2% and 6%. While this may seem low, the take up rate for additional paternity leave (which shared parental leave to some extent replaces) was reportedly even lower (0.8% of eligible fathers in 2011-12 and 1.4% in 2012-13).

For employees to take advantage of shared parental leave in significant numbers may require not just a legal change but also a cultural change, and some employers may wait a while before they receive their first shared parental leave request. However, inevitably such requests will come, and when they come they will need careful handling. As such, employers would be well advised to do any necessary preparation before the new arrangements come into force.

Graham Richardson is a Legal Director at Bond Dickinson LLP.  He can be contacted on 0191 279 9456 or This email address is being protected from spambots. You need JavaScript enabled to view it..