Employees may be entitled to Shared Parental Leave (SPL), as well as Shared Parental Pay (ShPP), if either they or their partner have had a baby or adopted a child.
What is Shared Parental Leave?
SPL enables eligible mothers, fathers, partners and adopters to choose how to share time off work after their child is born or placed for adoption. SPL, and ShPP, were designed to give parents more flexibility in how they share the care of their child in the first year following the birth or adoption.
Where eligible for SPL and ShPP, parents can share up to 50 weeks of Shared Parental Leave and up to 37 weeks of Shared Parental Pay between them. ShPP is payable at a rate of £148.68 a week, or 90% of their average weekly earnings, whichever is lower.
Who can take Shared Parental Leave?
To be eligible, parents must satisfy a number of strict criteria. In some cases, only one parent in a couple will be eligible for SPL and ShPP. This means that they cannot share the entitlement to leave.
SPL can only be taken by employees.
The rules for Shared Parental Pay differ slightly, as this can be claimed by workers such as zero-hour workers.
The mother of the child has to qualify for statutory maternity leave and pay, adoption leave and pay, or for maternity allowance where not eligible for either maternity or adoption leave.
Both parents will also need to share primary responsibility for the care of the child with the other parent at the time of the birth or placement for adoption, as well as satisfy the relevant work and pay criteria.
The work and pay criteria will differ depending on whether they are birth or adoptive parents, as well as whether one or both of the parents want to take advantage of the statutory entitlement(s) that are available.
By way of example, the eligibility criteria for birth parents in circumstances where they are both looking to share SPL and ShPP are as follows:
- They have each been employed continuously by the same employer for at least 26 weeks by the end of the 15th week before the due date
- They must remain with the same employer while they take SPL
- They must be classed as employees rather than workers – please note, where either parent is a worker, they can share ShPP but not SPL
- They must each have an average weekly earnings at least equal to the lower earnings limit (LEL) for National Insurance contributions for the 8 weeks’ prior to the 15th week before the expected due date or matching date – please note, where either parent earns less than this, ie; the LEL is £118 in the 2019-2020 tax year, they can share SPL but not ShPP.
The mother may opt to stay on maternity leave while the father takes shared parental leave/pay. In this case, both parents must still qualify under the SPL eligibility criteria.
How to take SPL
Parents intending to take Shared Parental Leave and Shared Parental Pay must properly notify their employer of their entitlement and provide the necessary declarations and evidence.
To trigger the right to SPL for one or both parents, the mother/adopter must have curtailed, or given notice to reduce, their maternity/adoption leave, pay or allowance. This is called ‘curtailment’, and is a formal process requiring notice to the employer or to Jobcentre Plus.
For Shared Parental Leave and ShPP to start, the mother or adopter must do one of the following:
- End their maternity or adoption leave by returning to work
- Give their employer binding notice of the date when they will end their maternity or adoption leave
- End their maternity pay, or where they are not entitled to maternity leave, for example, as an agency worker, end their maternity allowance.
- Please note, SPL can start for the partner while the mother or adopter is still on maternity or adoption leave, so long as she has given binding notice to her employer to end her leave and/or pay.
The mother must provide her employer with at least 8 weeks’ written notice to end her maternity leave and pay, or, where relevant, tell the Jobcentre Plus to end her maternity allowance. Similarly, adopters must give their employers notice to end their adoption leave and pay.
The mother’s partner must also apply to their own employer if they want SPL or ShPP. This can be done using the forms created by the Advisory, Conciliation and Arbitration Service (Acas).
To amend the amount of leave or pay they want to take, or when it will be taken, the parent will need to give their employer notice of any changes at least 8 weeks before the start of any leave.
How long is Shared Parental Leave?
Parents can choose how much of the SPL each partner will take. By way of example, where both the mother and father are eligible for SPL and ShPP and the mother ends her maternity leave and pay after 12 weeks, this will leave 40 weeks available for SPL and 27 weeks available for ShPP. They can then decide between them how to split this.
In theory, eligible parents can be off work together for up to 6 months or, alternatively, stagger their leave and pay so that one of them is always at home with their baby throughout the first year.
SPL must be taken between the baby’s birth and first birthday, or within one year of adoption. That said, throughout this period parents can use their entitlement in up to three blocks, interspersed with periods of work.
Further, if the employer agrees, the parent can split any block of leave into shorter periods of at least one week. For example, they could work every other week during a 12-week block, using a total of 6 weeks of SPL.
What are SPLIT days?
Parents can opt to work up to 20 days during SPL without bringing it to an end. These are called Shared Parental Leave In Touch (or SPLIT) days. These days are in addition to the 10 KIT (Keeping In Touch) days already available to those on maternity or adoption leave.
However, these SPLIT and KIT days are optional, whereby both the worker and their employer must agree to them.
How does Shared Parental Leave affect maternity leave?
To be eligible for Shared Parental Leave and pay, the mother must end her maternity leave and pay early – or in the case of adoption, one of the parents must end their adoption leave and pay early.
In other words, the mother or adoptive parent must be prepared to curtail their statutory right to these benefits so as to allow their partner to benefit from any remaining allowance(s).
Legal disclaimer
The matters contained in this article are intended to be for general information purposes only. This article does not constitute legal advice, nor is it a complete or authoritative statement of the law and should not be treated as such.
Whilst every effort is made to ensure that the information is correct, no warranty, express or implied, is given as to its accuracy and no liability is accepted for any error or omission.
Before acting on any of the information contained herein, expert legal advice should be sought.
Author
Anne Morris is the founder and Managing Director of DavidsonMorris. A highly experienced lawyer, she is recognised by Chambers & Partners and the Legal 500 UK as a trusted adviser to multinationals, large corporates and SMEs, delivering strategic immigration and global mobility advice. Anne is also an active commentator on UK immigration and HR matters.
