UK government publishes "complex" draft shared parental leave regulations

Out-Law News | 11 Mar 2014 | 3:43 pm | 2 min. read

The UK government has published draft regulations that would govern its proposed system of shared parental leave and pay, which is expected to be made available to parents of babies due on or after 5 April 2015. 

However, the 29-page draft has already been criticised by employment law experts for its complexity. Selwyn Blyth of Pinsent Masons, the law firm between Out-Law.com said that the "dissonance" between this drafting and what was a relatively straightforward concept was fairly typical of UK employment law.

"UK employment law is littered with examples of this kind of drafting, and in some ways it brings to mind the old maternity law legislation before it was revised," he said. "Looking at the complex 29 pages and two supporting sets of regulations published for consultation by the Department for Business, Innovation and Skills (BIS) the question of whether this is the most effective way to bring into force legislation that, at its heart, depends on effective communication between prospective parents and their employers arises."

"The introduction of a new right to shared parental leave comes as part of an incremental edging towards the right to flexible working no longer being considered as a gender issue, although it remains to be seen how many new fathers will be persuaded to take advantage of the new system. However, in my experience, employers do seem to be interested in finding out more about shared parental leave and the extended right to request flexible working, which was due to come into force next month but has now been delayed," he said.

The legislation governing shared parental leave is included in the Children and Families Bill, which is currently before the UK parliament. If passed in its current form the legislation would also allow the government to extend the right to request flexible working to all employees who have worked with that employer for 26 weeks or more.

BIS is asking for views on three sets of draft regulations, which are expected to come into force in October for babies due or adopted on or after 5 April 2015. The proposed system would allow both parents to share up to 50 weeks leave, taken at the same time or separately, and to receive statutory shared parental pay (SSPP) in respect of up to 39 weeks of that leave. New mothers would be entitled to cut short, or "curtail", their maternity leave after two weeks, and to make up to three requests to share leave with their partner with sufficient notice. These periods of leave need not be continuous; however, employers will have the right to refuse discontinuous periods of leave or suggest alternative dates.

The regulations also provide for up to 20 "keeping in touch" (KIT) days per employee, allowing them to return to work from shared parental leave on a part-time basis. This would work in a similar way to the 10 KIT days currently available to women who are taking maternity leave.

Shared parental leave would only be available to employees with 26 weeks continuous employment at the "relevant date", which is the end of the 15th week before the expected week of childbirth (EWB). The employee would be required to notify the employer in writing of their intention to take a period, or periods, of shared parental leave and to include certain information specified by the regulations. The draft also sets out provisions on terms and conditions during leave, the right to return to work, rights on redundancy and protection from detriment and dismissal. said that it did not "consider that these passages can simply be regarded as an infelicity of language".