DLA Piper UK LLP

Shared parental leave

Question

What is shared parental leave and what impact does it have on employers?

Answer

The new Shared Parental Leave Regulations (the Regulations) provide for the first time that eligible parents and adopting parents are able to share up to 50 weeks of the mother’s maternity leave and up to 37 weeks of statutory pay, as of 5 April 2015. This flexibility and greater choice over childcare allows eligible parents to decide which parents take the leave and when the leave is taken, while parents may also take leave at the same time.

The default position is still that the mother can take 52 weeks' leave and receive, where eligible, 39 weeks' pay. It is after the compulsory two-week period of leave from work immediately following the birth of the child (or equivalent two-week period in adoption cases) that the mother can choose to end her maternity leave (and pay) and, if both parents qualify, enter into an equivalent period of shared parental leave with her partner. Additional paternity leave - which entitled new fathers to additional leave if their partners returned to work before the end of maternity (or adoption) leave - has now been abolished following the implementation of the Regulations.

Further, the Regulations provide that the shared leave can be taken continuously or in discontinuous periods. Therefore unlike maternity leave, employees can return to work between periods of leave. The Regulations permit up to three notices of an intention to take shared parental leave and each notice can specify one or more blocks of leave. Employers cannot refuse a request for a continuous, single block of leave, but can subject discontinuous blocks of leave to agreement and suggest alternative dates where the requested dates are not feasible for the business.

Who is entitled

Employees are eligible to take shared parental leave if they have a minimum of 26 weeks' service with their employer at the 15th week before the expected week of childbirth or adoption placement. The employee's partner must also satisfy an 'employment and earnings' test which requires her or him to have worked for at least 26 weeks of the preceding 66 weeks leading up to the due date, earning not less than £30 per week in 13 of those 66 weeks.

What this means for employers

New policies

To address these new rights, employers will have to revise their existing parental leave policies, update their staff handbooks and - if they choose to do so - implement new policies stipulating the procedures to be followed when employees wish to share their leave with their partners.

Disruption to business

Employees requesting discontinuous periods of leave after the birth of their children or following adoption will inevitably make it more difficult for an employer to plan cover for their absence, both logistically and administratively. While recruiting externally is an option, it may prove more problematic when requiring staff for multiple and intermittent periods.

Enhanced pay

While employers are not required under the Regulations to enhance shared parental leave pay to the same level as they provide for maternity pay, there is a risk that not doing so will be perceived as discriminatory. The outcome of any claim is likely to come down to the employer’s circumstances and its justification for not offering the enhancement. However, it is clear that an employer cannot only offer the enhanced shared parental pay to mothers; where the employer chooses to offer enhanced shared parental pay, it must offer it to both mothers and their partners.

An increase in requests from male employees to take time off to care for their children

Following the publicity surrounding the implementation of the Regulations and the emphasis placed on shared parental leave being - among other things - a way for women to achieve equality in the workplace, it can be expected that the uptake of male employees taking time off to care for their children during the first year of its life or following adoption may increase. This is supported by a survey undertaken by the Department of Business, Innovation and Skills which suggests that the take up of shared parental leave may be higher than for the now-abolished additional paternity leave. This may not have as much of an impact on employers with more gender-balanced workplaces as it does on employers in particular sectors which employ predominantly male staff.

An increase in HR resources

Along with the Regulations potentially creating administrative burdens for employers, the implementation of shared parental leave policies are likely to increase the resources dedicated to HR functions, which will potentially incur further costs for employers. 

Advice for employers

Clear policies

Implementing clear policies surrounding shared parental leave and emphasising notice requirements, handover processes and preparation for the periods of absence is a way to ensure that employees' rights are accommodated and any concerns for the business are addressed at an early stage. The policy should be made available to employees at the early stages of the employee's pregnancy or planned adoption. This will mean that employees can think about the options available to them and make the employer aware of their decisions as early as possible, allowing for the employer to plan and minimise disruption to the business. Where employers choose not to have such a policy in place, they should ensure that their employees are aware of the procedures to follow when applying for shared parental leave and they must make sure that they are still meeting the statutory minimum requirements set out in the legislation.

Initiate informal discussions

If discussions are initiated at the outset of the pregnancy or adoption planning, the employer can gauge the employee’s intentions and get an idea of the type and pattern of leave the employee wishes to take. Ultimately, it will allow the employer to consider how best to accommodate any requests for shared parental leave and assess the likely impact on the business. Guidance from the Advisory, Conciliation and Arbitration service provides that where these discussions are held, it is recommended to allow the employee to be accompanied by a work colleague, trade union representative or even a friend or family member.

Train the company's management

It is important that all line managers and employees within the business occupying roles with responsibilities for others are aware of the right to shared parental leave and the business approach to notifications of such leave. This is to ensure that there is a uniform response across the business and that all employees are treated in the same manner.

Be open-minded

Where an employee has submitted a notification of her or his intention to take shared parental leave which may not be convenient for the business, remaining open-minded to suggestions will encourage flexibility on both sides and is likely to result in a more creative, but practical arrangement suitable for both employer and employee.

Avoid failing to respond to a leave notification

It is not good practice to avoid responding to an employee's shared parental leave notification and to do so is likely to be disadvantageous to the working relationship. It is important to remember at all times that qualifying employees have a legal right to choose to take shared parental leave, to determine when they take it and to not suffer any detriment for using or seeking to use shared parental leave.

Recognise that shared parental leave is a potential gateway to diversity

While the concept of shared parental leave and the option for employees to take discontinuous periods of leave sounds like a logistical nightmare for employers, it is important to bear in mind that this will mean key employees in senior roles can remain involved and still play a crucial role in the business throughout the first year of their children’s upbringing or following adoption - an opportunity which is not available when an employee goes on maternity leave.

Utilise 'keeping in touch' days

Employees taking shared parental leave can work up to 20 days during such leave without bringing it to an end. This is in addition to the 10 keeping in touch days already available to those on maternity or adoption leave. This will allow an employer to keep the employee in the loop and bring her or him up to speed on new projects and developments, subject to the employee’s agreement to participate. It is important to note that an employee is not obliged to co-operate with any keep-in-touch-day policy.

Conclusion

The Regulations represent a substantial change to family rights in the United Kingdom and a cultural shift from the entrenched attitudes and expectations in a lot of businesses that the mothers will take primary responsibility of the child during the first year of life or following adoption. If shared parental leave is managed effectively, it has the potential to build employee engagement and loyalty within a business. Additionally, it provides further opportunities for women in high-profile roles to achieve equality in the workplace and enable more women to progress into senior roles, which will help prevent the drain of female talent in the workplace. Ultimately, the Regulations are unlikely to be construed as a detrimental change when they aim to allow families to make plans for their children’s upbringings according to their circumstances and give them leeway to better manage their work and family lives. 

Gemma O'Boyle is a trainee solicitor at DLA Piper's Sheffield office.

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