Can we opt out of statutory pay if my SPP is better than my wife’s?

My wife and I are expecting in December, and we are currently finalising our plans for Shared Parental Leave next year. We intend to split our leave into blocks (already approved by respective employers), but we have quite a specific request to try to make our leave plans financially viable. I am lucky in that I receive 14 weeks shared parental on full pay. My wife is less fortunate, so will move onto statutory pay after six weeks. I’m conscious that deducting my 14 weeks from our 39 weeks of entitlement only leaves my wife with 25 weeks. We have worked out a pattern that would mean her taking 28 weeks prior to my final block of leave, but I’m wondering if she is able to replace her Shared Parental Leave with Unpaid Leave for three weeks before I begin my final block. The reason is that we would be better off with my wife being unpaid for three weeks in July, than me being unpaid for three weeks in November. We’d essentially be asking to opt out of statutory pay for three weeks.

Parenting

 

The statutory system for shared parental leave (SPL) and pay, which was introduced in December 2014, is notoriously complicated.

The period of SPL is a maximum of 52 weeks less the amount of statutory maternity leave that the mother has taken before curtailing her maternity leave in order to take advantage of SPL. This can be done either by the mother returning to work or by serving a curtailment notice.

The entitlement to shared parental pay (SPP) is 39 weeks less the number of weeks of statutory maternity pay received by the mother before serving a separate curtailment notice specifying the date on which she wants her maternity pay to period to end. The effect of the curtailment notice is to reduce the amount of maternity pay available to the mother and allow the balance to be claimed as Shared Parental Pay (SPP). Employees who intend to claim SPP must provide notice to the employer in accordance with the Regulations. This notice must be given at least eight weeks before the employee wishes to start claiming Shared Parental Pay and the notice must contain certain required information, including the total number of weeks in respect of which he or she would be entitled to claim SPP (disregarding any intention of the other parent to claim), the number of weeks of which he or she intends to claim Shared Parental Pay, the number of weeks in respect of which the other parent intends to claim SPP and the period or periods during which the employee intends to claim SPP.

SPP is not payable on or after the child’s first birthday and is not payable to the mother before the end of her statutory maternity pay period. By way of example, a mothers maternity pay period begins on Tuesday 21 April 2019 and she gives birth the following Thursday 30 April 2019. She has already curtailed her Maternity Pay Period so that it will end on 7 September 2019, having given her employer a curtailment notice well in advance of the eight-week notice required. This means that her Maternity Pay Period is reduced to 20 weeks and the total amount of SPL available is 19 weeks. The effect is that the mother can (if she chooses to take SPL) claim SPP any time between 8 September 2019 and 29th April 2020 (within one year of child’s first birthday). The father would be able to claim SPP any time from the birth of the child on 30 April 2019 until 29 April 2020.

In answer to your query we cannot find anything in the legislation that would prevent the mother taking the period of three weeks as another type of leave, such as annual leave or unpaid leave with the agreement of her employer. However, given the very complex notice requirements and the fact that we have not had details of the notices served to date, we would strongly urge that you take legal advice and provide the full details of the arrangement reached and the notices served to date, if any.

*Helen Frankland has assisted with this answer.



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