Unfortunately if there isn't anything in writing or a change of contract then I would say...read more
Shared Parental Leave is complex. Our experts answer some of the key questions.
Shared Parental Leave legislation came into force in April 2015. The law entitles couples to share the 50 of the 52 weeks after their baby is born [the first two weeks’ leave after birth are compulsory for the mother].
Those eligible must include a person who has worked for the same employer for at least 26 weeks by the end of the 15th week before the due date and remain with them while they are on SPL and a person who has worked in either an employed or self-employed basis for 26 weeks in the 66 weeks before the baby’s due date and have earned at least £30 a week in any 13 weeks during the 66 weeks.
Currently, parents on SPL are entitled to a total of 39 weeks’ shared parental pay between them less any maternity pay taken or due to be taken. SPL is paid at the statutory rate of £145.18 a week. Some employers have chosen to enhance this.
There are various ways the leave can be shared. Parents can do so in one chunk, one after the other or in discontinuous blocks, giving the correct notice. Employers can turn down discontinuous blocks of leave and ask for the leave to be taken in one block. They can both be off work at the same time – one on SPL and the other on maternity leave.
Take-up of SPL is still very low. One of the possible reasons is the complexity of the legislation. Workingmums.co.uk has received a number of questions to our legal experts on aspects of the legislation and here we outline some of the issues that have come up. They fall under three broad categories: finance, rights and notice periods.
One dad wrote: “I’m currently taking shared parental leave from my job. My employer and I didn’t realise that I could only claim two weeks’ paternity pay and then the statutory amount from then on in. They paid me wrongly for two months and I now owe them this money back when I return to work. Nobody realised until afterwards that I wouldn’t receive the same as a female counterpart in my workplace – a full month’s pay, plus two weeks at 90%, then the next 10 weeks at 50%, plus maternity allowance if applicable. Is there anything I can do about this? Why does a man taking the main role as care giver to their child get financially penalised for it? This really isn’t equality at all. Do I have any claim to sexual discrimination or equal rights? Why can’t I claim and receive the same as my female counterparts?”
Employment lawyer Tracey Guest from Slater Heelis responded: “The question of whether or not it is discriminatory for employers to enhance maternity pay but not shared parental pay remains largely untested in the courts and tribunals [there is a case current at the Court of Appeal]. Employers are able to decide whether or not to enhance contractual pay to employees on shared parental leave, when they already pay enhanced maternity pay. However, there is no statutory provision requiring them to do so.
“As your employer presumably pays enhanced pay to employees on maternity leave, but not to employees on shared parental leave, there is a risk of them facing an indirect sex discrimination claim from a male employees who takes shared parental leave. However, your employer may be able to defend any such indirect sex discrimination claim on the grounds that the male employee on shared parental leave is treated no less favourably than the same-sex partner of a woman who had just given birth would be treated on shared parental leave. Unfortunately, there have not yet been any appeal decisions that set a precedent on this point.
“If the policy you mention in your question refers to only women on shared parental leave then the situation is different.”
Employment lawyer Kirsten Smith of face2faceHR Cambridge says: “Essentially you are either on leave or you’re not.” However, she says either person could make a flexible working request to reduce their hours, though you can only make one flexible working request a year and you therefore run the risk of being stuck with these reduced hours. Another option is to get temporary part-time work with another employer. There are 20 SPLIT Days per parent during SPL [where you can work for the whole or part of 20 days and be paid so you don’t lose contact with your work] so these can also be employed. These are on top of the 10 KIT Days for maternity leave. Smith advises: “With these days, the employer has to agree them so you shouldn’t bank on being able to use them up until you have spoken to them.”
Lawyer Danielle Ayres from Gorvins Solicitors
With regard to Shared Parental Pay, ACAS says: “If an employee’s employment comes to an end while they are still entitled to some Shared Parental Pay then any remaining weeks will usually remain payable unless they start working for someone else.”
Another mother asked about giving advance notice of ending her maternity leave, being off on maternity leave while her partner is on SPL and the implications for statutory pay.
Danielle Ayres said: “In respect of pay, you are entitled to a total of 39 weeks’ shared parental pay between you, again, less any maternity pay taken or due to be taken. Therefore any money received by you, as statutory maternity pay, or by your husband as shared parental pay would need to be deducted from the total 39-week entitlement.
“When you take the leave does not alter the total number of weeks of shared parental leave and pay, so if you are planning on taking the time off together and are both being paid in respect of the same, your entitlement to leave and pay will in effect reduce quicker than if you were to take separate blocks of leave.”
*Watch Workingmums.co.uk and DaddiLife’s videos on the conversations parents have around parental leave here.