Caring is sharing

02 Dec

The Shared Parental Leave Regulations 2014 came into force on 1 December 2014. Are you ready for the changes?

 

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The Shared Parental Leave Regulations 2014 came into force on 1 December 2014. Are you ready for the changes?

The new system of Shared Parental Leave (“SPL”) is intended to give parents greater flexibility in relation to the leave they can take to care for a new child.

Although the right to take shared parental leave only applies to eligible parents of children due on or after 5 April 2015, the implementing Shared Parental Leave Regulations 2014 (“the SPL Regs”) are now in force.

As of 1 December 2014, employers and eligible employees can begin to make arrangements for taking leave under the new regime.

Leave following the birth of a child has traditionally been the preserve of the mother, with only limited opportunity for the father (or other parent) to take paid leave from work in those early months.

Mothers are entitled to up to 52 weeks of maternity leave (made up of Statutory and Additional Maternity Leave) and Statutory Maternity Pay at 90% of average earnings for the first six weeks and the lower of £138.18 or 90% of average weekly earnings for the next 33 weeks.

Fathers, on the other hand, have been entitled to only two weeks’ Paternity Leave, payable at the lower of £138.18 or 90% of average weekly earnings. It has, however, been possible for fathers to take Additional Paternity Leave by transferring maternity leave from the mother, from 20 weeks after the birth of the child.

These options will now be complemented by the new SPL regime (which also applies to adoption and surrogacy). The regime will allow parents expecting or adopting a baby on or after 5 April 2015 to share up to 50 weeks’ leave and 37 weeks’ pay between them. With the exception of the first two weeks (which are reserved for the mother alone), both parents can now request to take leave to care for their new child in blocks of complete weeks, either at the same time as each other or separately.

They must give an employer a minimum of 8 weeks’ notice of their intended pattern of leave. Employers must agree to periods of continuous leave, but they do have a discretion in relation to requests for discontinuous periods.

Conceptually, this is a huge step forward for family friendly rights, although the enhanced flexibility comes at a price: the regime may initially prove complex to manage for employers and employees alike.

Given the potential administrative challenges posed by this new statutory framework, it is unsurprising that all parties will need to start making appropriate plans now: employers by implementing appropriate policies and employees by deciding how they might want to share caring responsibilities during the first year.

Of particular note is the fact that, since the commencement of the SPL Regs on 1 December, eligible parents already enjoy certain new rights. This includes a right under reg. 42 of the SPL Regs not to suffer any detriment for giving an employer notice to take leave (this applies even where the reason for the detriment is merely the belief that the employee was likely to take SPL).

There is also a protection from unfair dismissal, where the reason or principal reason for the dismissal is that the employee took or sought to take SPL, or the employer believed they might do so (see reg. 43 of the SPL Regs). Employers need to be aware that they already face potential new liabilities, despite the fact that SPL cannot actually be taken until April next year.  

ACAS and the Department for Business Innovation & Skills have issued the following guidance documents on SPL, which you may find useful:

Shared Parental Leave: a good practice guide for employers and employees (ACAS)
(http://www.acas.org.uk/media/pdf/1/c/Shared-Parental-Leave-a-good-practice-guide-for-employers-and-employees.pdf)

Employers’ Technical Guide to Shared Parental Leave and Pay (BIS)
(https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/353019/bis-14-1076-employers-technical-guide-shared-parental-leave-and-pay.pdf)

 

Adrian Peck

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