On 5 March 2014, the government published three sets of draft regulations dealing with the significant proposed new regime in relation to shared parental leave and pay. The regulations are to be issued under the Children and Families Bill 2013-14, which is in the final stages of the parliamentary process. Shared parental leave and pay will apply to parents of babies due on or after 5 April 2015, or children placed for adoption on or after that date.
The regulations contain considerable detail about entitlement to shared leave and pay, the mechanics of requesting and taking leave, terms and conditions during leave and on return to work, redundancy, KIT days and protection from detriment and unfair dismissal. The government is seeking views on the draft regulations.
Walbrook Law will report back once the consultation process has concluded but the key proposed changes to be aware of for the time being are as follows:
- The draft regulations relate to the new system of shared parental leave and pay which has been in the pipeline for a number of years but is to become reality next year as one of the coalition government’s main employment law initiatives. Eligible employees will be entitled to a maximum of 52 weeks’ leave and 39 weeks’ statutory pay upon the birth or adoption of a child, which can be shared between the parents.
- The draft regulations give one or both parents the possibility of taking shared parental leave once a mother who is entitled to statutory maternity leave has curtailed that leave.
- They also allow for shared parental leave where the mother did not qualify for statutory maternity leave (because she is a worker, agency worker or self-employed) but has nevertheless had a period of not working during which she has received statutory maternity pay (SMP) or maternity allowance (MA), and which has now come to an end. In such cases, only the child’s father (or the mother’s husband/partner would qualify. The mother would not.
- The period available for shared parental leave is 52 weeks minus the period that the mother has spent on maternity leave or in receipt of SMP or MA. Similar provisions apply in cases of adoption.
- Shared parental leave is only available to employees who have 26 weeks’ continuous employment at the “relevant date”, which is the end of the 15th week before the EWC or the week they are notified of an adoption match . The employee is required to notify the employer in writing of the intention to take a period (or periods) of shared parental leave, and to include certain specified information and declarations. The employee may also be required to submit evidence of entitlement where requested by the employer.
- While the default position is that an employee is entitled to one continuous period of shared parental leave, employees may request several discontinuous periods of shared parental leave. In such cases the employer can agree to the request, propose alternative dates or refuse the request altogether, in which case the employee will be entitled to one continuous period of leave. Alternatively, the employee may withdraw the notice (presumably so that their spouse or partner may, if entitled, take leave at that time instead).
- The draft provisions as to notifications and requests are fairly complex. The employee may be required to give several different written notices to the employer, and may find it difficult to know exactly what to put in those notices without a working knowledge of the regulations, unless the employer (or the government) make available a comprehensive pack of forms for all the notices an employee may be required to give.
- The draft regulations set out provisions on terms and conditions during leave, the right to return to work, rights on redundancy, and protection from detriment and dismissal, all of which are very similar to the current provisions on maternity, adoption and paternity leave. There is also a schedule setting out special arrangements for leave where the child or one of the parents dies, or where the adoption placement is unsuccessful.
- The regulations will increase keeping in touch days (KIT days) to a maximum of 20 per employee during shared parental leave. As the government made clear in its previous response to consultation, the 20 KIT days for shared parental leave are additional to the ten maternity leave KIT days.
- When the mother is on maternity leave (or one adoptive parent is on adoption leave), neither parent can take shared parental leave unless the maternity or adoption leave is brought to an end early. The Draft Maternity and Adoption Leave (Curtailment of Statutory Rights to Leave) Regulations 2014 set out how that leave can be brought to an end by giving at least 8 weeks’ notice in a “leave curtailment notice”. They also set out the circumstances in which a leave curtailment notice can be withdrawn or revoked.
- The Draft Statutory Shared Parental Pay (General) Regulations 2014 set out the eligibility conditions for either parent to claim shared parental pay (SSPP) on the birth or adoption of a child, and the notifications that must be given to the employer in order to qualify. Aside from the additional complexity inherent in the shared parental leave scheme, the regulations reflect a similar regime to the current system for statutory maternity pay.
Whilst the actual take up of the new shared parental leave/pay regime remains to be seen, this will undoubtedly be a major change for employers to get to grips with from April 2015 and there will be numerous legal and logistical complexities to contend with regarding the process to be followed. Further details to follow on www.walbrooklaw.com as the draft regulations progress through the parliamentary process.
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