Employment Law

New employment regulations come into force today which both employers and employees should be aware of.

The new regulations relating to Shared Parental Leave come into force from 1st December, 2014.

The regulations will apply to all parents who meet the eligibility, and who are expecting babies to be born on or after 5th April, 2015. Because the new regulations are now in force, employers could start to receive notices of eligibility and the intention to take Shared Parental Leave from qualifying employees from January 2015.

To qualify, the mother or adopter must be entitled to, and have given notice to curtail their, maternity or adoption entitlements and must share the main responsibility for caring for the child with the child’s father or their partner. For a parent to be eligible to take Shared Parental Leave they must be an employee and they must pass the continuity of employment test: that is, the person must have worked for the same employer for at least 26 weeks at the end of the 15th week before the week in which the child is due (or at the week in which an adopter was notified of having been matched with a child or adoption) and is still employed in the first week that Shared Parental Leave is to be taken. In turn, the other parent in the family must meet the employment and earnings test: that is, the person must have worked for at least 26 weeks in the 66 weeks leading up to the due date and have earned above the maternity allowance threshold of £30 per week in 13 of the 66 weeks.

Where both parents satisfy the continuity of employment test requirement, they will both be able to make use of the pot of Shared Parental Leave. The regulations do, however, mean that a family can still use Shared Parental Leave even when only one parent actually meets the eligibility criteria. Take the example of a self-employed parent: they themselves will not be entitled to take Shared Parental leave, but they could still pass the employment and earnings test allowing the other parent in the family to qualify.

Who makes the ultimate decision under the new regulations? Well, it will be up to the mother or adopter to decide whether to just use their maternity or adoption entitlement or to use Shared Parental Leave at some point. However, a mother or adopter does not have to have actually ended their maternity or adoption entitlements for Shared Parental Leave to start for their partner. As long as the mother or adopter has given advance notice reducing their maternity or adoption entitlements their partner can start to take Shared Parental Leave. This means their partner could begin to take Shared Parental Leave while the mother or adopter is still on maternity or adoption leave.

Shared Parental Leave may be taken at any time within the period which begins on the date the child is born/date of the placement and ends 52 weeks after that date. An employee is entitled to submit three separate notices to book leave. Leave must be taken in complete weeks and may be taken either in a continuous period, which an employer cannot refuse, or over a number of discontinued periods. However, it should be noted that an employer can refuse this request. If that happens, then the total amount of leave requested in the notice will automatically become a continuous block unless it is withdrawn.

Shared Parental Pay

Statutory Shared parental pay is paid at £138.18 or 90% of the average weekly earnings (whichever is lower).

If the mother or adopter curtails their entitlement to maternity/adoption pay or maternity allowance before they have used their full entitlement then Shared parental pay can be claimed for any remaining weeks.

To qualify for Shared Parental Pay a parent must, as well as passing the continuity of employment test also have earned an average salary of the lower earnings limit of £111 for the 8 weeks’ prior to the 15th week before the expected due date or matching date. Like Shared Parental Leave the other parent in the family must meet the employment and earnings test.

Maternity leave and pay.

An employed mother will continue to have the right to take up to 52 weeks statutory maternity leave.

Ante-natal appointments.

All pregnant employees are entitled to reasonable time off with pay for antenatal care made on the advice of a registered medical practitioner. Except for the first appointment, employees should show the employer, if requested, an appointment card or other documents showing that an appointment has been made. Fathers and partners of pregnant women are entitled to unpaid time off to attend two ante-natal appointments. Employers may allow this time off with pay under the terms and condition of employment.

Intended parents in a surrogacy case who meet the conditions set out under the Human Embryology and Fertilisation Act 2008 will also have the right to unpaid leave to attend up to two antenatal appointments.

Paternity leave and pay.

Paternity leave will continue to be available for fathers and partners. This will be a period of one or two weeks which must be used in a single block of leave and taken within 56 days of the birth. If the child is born early, paternity leave can be taken within the period from the actual date of birth up to 56 days after the expected date of birth. However, additional paternity leave and pay will no longer be available for babies due after 5th April 2015.

Notification of Shared Parental Leave.

If an employee wishes to take Shared Parental Leave they must provide their employer with a notice of entitlement to take Shared Parental Leave. The notice must be given at least eight weeks before the start of a period of Shared Parental Leave and must indicate how:

• how much leave is available.
• how much leave they are entitled to take.
• how much leave the parent is intending to take.
• how they expect to take it.

Any notice booking Shared Parental Leave must be given at least eight weeks before the leave is due to start.

Each eligible parent can give their employer up to 3 separate notices booking or varying leave. Each notice can be for a block of leave, or the notice may be for a pattern of “discontinuous” leave involving different periods of leave. If a parent asks for a continuous block of leave the employer is required to agree to it. However, where the notification is for discontinuous blocks of leave the employer can refuse and require that the total weeks of leave in the notice be taken in a single continuous block. It is therefore beneficial for the employee and employer to discuss and attempt to agree a way in which the different blocks of leave can be taken.

What implications do the new Shared Parental Leave regulations have for employers?

Once a notification for a period of leave has been received an employer may wish to consider the following points:

• is the notification for leave one continuous block or two or more weeks of discontinuous leave?
• what cover will be needed for the employee’s absence?
• will a discussion with the employee be beneficial at this time?
• is any modification to a discontinuous leave request necessary?

Outcomes:

Depending on the individual circumstances, there are four options available to an employer once they have received, considered and discussed a Shared Parental Leave notification:

• they can confirm a continuous leave period or accept a discontinuous leave request.
• agree a modification to a leave request (an employee is under no obligation to modify a continuous leave notice and should never be put under any pressure to do so).
• refuse a discontinuous leave notification.
• an employer can choose to make no response to a leave notification, but this would be considered to be poor practice and therefore should ideally be avoided

Where employers either refuse a discontinuous leave notification or choose not to respond, the employee can withdraw their notification on or before the 15th day after the notification was originally made and it will not count as one of their three notifications. If not, they must take the total amount of leave notified in one continuous block. The employee can choose when this leave period will begin within 19 days of the date the notification was given to the employer but it cannot start sooner than the initial notified start date. If they don’t, the leave will begin on the starting date stated in the original notification.

Key points of the new Shared Parental Leave regulations:

• employed mothers will continue to be entitled to 52 weeks of Maternity Leave and 39 weeks of statutory maternity pay or maternity allowance.
• if they choose to do so, an eligible mother can end her maternity leave early and, with her partner or the child’s father, opt for Shared Parental Leave instead of Maternity Leave. If they both meet the qualifying requirements, they will need to decide how they want to divide their Shared Parental Leave and Pay entitlement.
• paid Paternity Leave of two weeks will continue to be available to fathers and a mother’s or adopter’s partner, however Additional Paternity Leave will be removed (Shared Parental Leave will replace it).
• adopters will have the same rights as other parents to Shared Parental leave and pay.
• shared Parental Leave will enable eligible mothers, fathers, partners and adopters to choose how to share time off work after their child is born or placed for adoption. This could mean that the mother or adopter shares some of the leave with her partner, perhaps returning to work for part of the time and then resuming leave at a later date.
• The new regulations are designed to give parents more flexibility in how to share the care of their child in the first year following birth or adoption. Parents will be able to share a pot of leave, and can decide to be off work at the same time and/or take it in turns to have periods of leave to look after the child.

For advice on this or any other employment law issue. Please contact us on 01457 835597 or complete the contact us form.