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I’m currently on my fifth week of maternity. I’ve been with my employer for over 10 years and our baby was born four weeks ago. My husband is on a fixed-term contract which ends in 10 weeks time and is unlikely to be renewed. He has been with the same employer for 18 months. Are we still entitled to statutory shared maternity leave? Is this the case even if we decide to have shared maternity leave after we receive notice my husband’s contract will not be renewed?
In order to qualify for Shared Parental Leave (“SPL”) an employee must satisfy the continuity of employment test and their partner must meet the employment and earnings test.
Under the continuity of employment test the parent must have worked for the same employer for at least 26 weeks at the end of the 15th week before the child’s expected due date and must also still be working for the employer in the first week that any period of SPL is to be taken.
Under the employment and earnings test the partner, in the 66 weeks leading up to the baby’s expected due date, must have worked for at least 26 weeks and earned an average of at least £30 (as of 2015) a week in any 13 weeks.
Given how long you have each been employed and the likelihood that you will have met the earnings test, at the present time, you both qualify for SPL and Shared Parental Pay (“ShPP”). Therefore, if it is that you and your husband are thinking of taking SPL, you must give the appropriate notices, setting out the periods of leave you wish to take, prior to his contract coming to an end and he must ensure that he is still in employment with his current employer during the last week before SPL commences. Whilst I appreciate there may be a period of notice which may give you more time, given the stringent notice requirements, you may need to act quickly on this if it is that his contract will terminate 10 weeks from now.
The Regulations do state that a parent wishing to claim ShPP must continue in employment with their employer between the 15th week before the EWC and the last week before taking SPL. However, nowhere does it state that the person needs to be employed before any period of SPL begins. Albeit that this is a new area of law, which is yet to be tested, my understanding is that once you have satisfied the qualifying requirement for ShPP, you do not have to satisfy that requirement again. I think the intention behind the legislation is that once you have satisfied the qualifying requirement for ShPP and have booked a period or periods of SPL, you remain entitled to ShPP for those periods of leave regardless of whether your employment is terminated before you can take the leave. The ACAS Guidance confirms the same, stating that “if an employee’s employment comes to an end while they are still entitled to some ShPP then any remaining weeks will usually remain payable unless they start working for someone else”. Therefore, if you are given notice that his contract is to be terminated, but your SPL has already begun, he will still be entitled to claim ShPP for any leave periods booked, unless he finds a new job.