Welcome to this preview of some of the employment law changes we expect to see during the course of 2015. My name’s Anna Fletcher and I’m a director in the employment team at Wragge Lawrence Graham. So what’s shared parental leave all about It’s quite new. It’s quite innovative. Whether it’s taken up obviously remains to be seen. But what we’ve got to bear in mind is that this is still a twintrack approach to family leave rights. There is nothing in the Shared Parental Leave Regulations that remove an entitlement to statutory maternity leave,.
Nothing that removes rights in relation to adoption leave. And the idea is that this new regime will run side by side and so parents can choose whether they decide to opt into this new system. It’s a right available to working parents where they will be sharing the responsibility for caring for the child. So it’s applicable in birth situations but also in adoption situations. And it will entitle parents to opt into the system and to take up to 52 weeks’ leave. Although what you’ve got to bear in mind is that these Regulations don’t remove the obligation.
And the right to compulsory maternity leave, so actually it only leaves in reality 50 weeks of leave to be shared. And because of that twoweek compulsory period, it also only leaves 37 weeks of pay to be shared. Mothers and fathers or mothers’ partners need to be able to prove that they both satisfy a range of eligibility conditions. So if you’re the mother and you’re an employee, you have to have continuous service of 26 weeks at the expected week before the week of childbirth. You also have to have the main responsibility for the care of the child and you then need.
Shared parental leave and pay explained
To be able to satisfy the notice requirements. Not only do you have to sign a declaration confirming your entitlement and confirming that you’ll tell the employer if there are a change of circumstances, also your father or the partner of the mother needs to satisfy and sign a particular declaration. And within that declaration what has to be shown is that not only is the father or the mother’s partner going to be sharing the main responsibility for the caring of the child with the mother, but they also need to show that they meet another eligibility test, which is that of.
The employment and earnings test. Now the employment and earnings test simply means that the father or the partner needs to be an employee or what’s known as a selfemployed earner. You have to have worked for 26 weeks out of the last 66 weeks and within 13 of those 66 weeks you have to have earned at least 30 per week. It’s a bit of misnomer really calling it shared parental leave because there are, and there will be, situations where the parents may not actually have leave to share.
If, for example, the father or the mother’s partner is the employee then they may have a right to shared parental leave if the mother satisfies various tests including the fact that she is an employee or selfemployed earner. So, in fact, if the mother’s self employed but she meets that selfemployed earner test, then it’s potentially possible for the father to opt for shared parental leave when, of course, the mother in that situation has no entitlement to statutory maternity leave and, in fact, has no leave to take. Periods of leave can be taken as periods of continuous leave. And if the employee asks.
For a period of continuous leave, that can’t be refused by the employer. But employees are entitled to ask for discontinuous periods of leave. So that means that in effect they can be on shared parental leave and return to work and go back on shared parental leave. And that’s where it’s so different to the current arrangements in relation to maternity and adoption leave. However, for employers who are concerned about discontinuous periods of leave and how disruptive that might be to administer, actually the employer can refuse the request.
The Shared Parental Leave Pay Regulations effectively mirror what we have in relation to statutory maternity pay. Except that with shared parental leave pay, it’s one flat rate for the entire 37 weeks of the pay period that’s applicable. It’s open to employers, if they want to, to enhance that provision. And there’s a great debate raging at the moment as to whether or not failing to do that, where you offer an enhanced maternity pay scheme, might actually be discriminatory. But there’s no obligation according to the Government for shared parental pay to actually mirror enhanced maternity.