New UK rules on shared parental leave and pay set to come into force

Out-Law News | 28 Nov 2014 | 10:06 am | 2 min. read

Employees will be given new rights to shared parental leave and pay in the UK under regulations due to come into force on Monday.

The Shared Parental Leave Regulations and the Statutory Shared Parental Pay (General) Regulations were finalised earlier this month and come into force on 1 December.

Under the new rules  parents of babies due or adopted on or after 5 April 2015 will be entitled to share up to 52 weeks of leave,  and receive statutory shared parental pay (SSPP) in respect of up to 39 weeks of that leave. New mothers are obliged to take the first two weeks after childbirth off, but can share up to the remaining 50 weeks of leave entitlement with their partner. The leave can be taken by both parents consecutively or they can both be on leave at the same time.

The regulations contain a list of criteria that both parents must satisfy to be eligible for shared leave rights, which includes a requirement for at least 26 weeks continuous employment at the "relevant date", which is the end of the 15th week before the expected week of childbirth (EWB).

Employment law expert Linda Jones of Pinsent Masons, the law firm behind Out-Law.com, said that the new regulations are very complex and employers need to spend time getting to grips with how they will work in practice.

"One of the very different aspects of the regulations compared to the maternity leave regime is that during the 12 months after the baby’s birth or adoption, employees will be able to take leave in short blocks of time, returning to work between each  period of leave,” Jones said. "Parents can make a single application for periods of discontinuous leave, which the employer will be entitled to refuse without having to give a reason or suggest alternative dates that the leave could be taken." 

"However, the right to refuse is deceptive, because the regulations also allow employees, as an alternative, to make up to three separate requests, each for a single period of leave, thereby achieving a pattern of discontinuous leave which employers are not able to refuse. This creates potential issues for business continuity as employers could be left with as little as eight weeks of notice to find cover for lengthy absences," she said.

The regulations also contain provisions on employees' terms and conditions during leave, the right to return to work, rights on redundancy and protection from detriment and dismissal. They  provide for up to 20 "keeping in touch" (KIT) days per employee,  which can be used by parents to return to work from shared parental leave on a part-time basis. This will work in a similar way to the 10 KIT days currently available to women who are taking maternity leave.

Jones said that the new regime will also raise questions about whether employers who provide for enhanced maternity pay should also provide the same level of enhanced pay for parents taking advantage of the shared parental leave scheme.

"Many employers are looking to promote themselves as supporters of family rights and having an inclusive and diverse workforce," Jones said. "Many of those employers offer women enhanced maternity pay during maternity leave. What would the justification be for not offering the same enhancement for shared parental pay? There’s no direct legal obligation to do so, although there is the possibility of a challenge on discrimination grounds."

"However, potentially the bigger risk is that a differential treatment for shared parental leave could leave employees wondering whether women are being encouraged to stay at home with the children while men are being encouraged to return to the work place. Employers are of course concerned about cost, but this has to be balanced against the potential negative impact on employer brand if the two types of leave are treated differently," Jones said.