Partner Article

Shared parental leave: What employers should consider

In 2015, new legislation will be introduced under the Children and Families Bill 2013 to increase flexibility into the right for parents to share leave which seeks to encourage a more flexible approach to parental leave.

Current Position

Fathers are entitled to one or two consecutive weeks’ ordinary paternity leave (OPL) within 56 days of the child’s birth, paid as a minimum at the government rate for OPL.

Statistics suggest that 9 out of 10 new fathers take up their right to ordinary paternity leave. Many employers top up the government rate for OPL making this option more feasible for new parents.

In addition the father is entitled to one period of additional paternity leave (APL) lasting between 2 and 26 weeks’. APL must be taken between the date 20 weeks and 12 months from the birth. APL can only be taken IF the mother has returned to work.

The pay for APL will be at the government rate, but only IF the mother was entitled to statutory maternity pay and she returned to work with at least two weeks’ of her maternity pay unused. The father would then be able to claim the total number of weeks’ additional paternity pay that the mother has not used of her maternity pay entitlement.

This means that parents have to decide, sometimes very early on in their baby’s life, if the mother will return to work and if so for how long the father will take additional paternity leave.

The mother cannot change her mind as once she has returned to work she loses her entitlement to take maternity leave. This lack of flexibility and need for rigid planning at a time when planning is the last thing on any new parent’s mind, makes the current scheme much less attractive and in practice statistics suggest that only 1 in 172 eligible fathers take APL.

It is also currently very rare for an employer to offer any top up on the government pay rate for APL during this period. During APL, the father can also take up to 10 ‘keeping in touch days’ (KIT days).

Position after the introduction of Shared Parental Leave (SPL) in 2015

There will be no change to the entitlement to OPL.

However, in relation to the additional leave entitlement, parents will now share up to 50 weeks’ of leave and 37 weeks’ of pay (at the government rate). Parents can alternate their periods of parental leave and there is no limit on the number of periods of leave they take (provided they are taken in full weeks). Parents can also choose to take their leave simultaneously.

Parents must give their employers 8 weeks’ notice of the blocks of leave they wish to take, but with notice, they can change these dates. Payment for SPL will be at the government rate. There are no conditions governing when the mother would have to go back to work in order for the father to be entitled to leave.

It is simply 50 weeks’ of leave and 37 weeks’ of pay shared between the parents. Each parent can use up to 20 KIT days during any period of leave, on which they attend work, paid or unpaid as agreed with the employer, without losing their right to take the remaining parental leave.

It remains to be seen whether employers will start to offer top up pay to fathers for any SPL they take.

Considerations for Employers

• Employers may start to see applications for atypical parental leave, and will need to have a procedure for considering this.
• Employers will be able to turn down requests for a format of shared parental leave which it cannot accommodate, and the default in such circumstances will be a single block of leave being agreed.
• Employers will need to consider the policies they have in place regarding contractual maternity pay (i.e. in excess of the statutory requirements). Failing to roll out this right to fathers taking SPL could be a form of sex discrimination.

Article written by Rebecca Lynch, employment partner at Davenport Lyons.

This was posted in Bdaily's Members' News section by Davenport Lyons .