Shared Parental Leave and Pay: Draft Regulations Published

The Government is seeking views on draft regulations dealing with shared parental leave and pay, due to be introduced for parents of children expected to be born or placed for adoption on or after 5 April 2015. 

Under the shared parental leave system, mothers will have the option of sharing up to 50 of their 52 weeks’ maternity leave and 37 of their 39 weeks’ statutory pay with their partner. In order to do so they must end their statutory maternity leave. Similar provisions apply in respect of adoption leave.

The Government has published three sets of draft regulations which deal with the entitlement to and procedure for requesting shared parental leave and pay and the procedure for bringing maternity leave and adoption leave to an end.

The Shared Parental Leave Regulations 

These regulations set out:

• the conditions for entitlement to shared parental leave for both parents; 
• how to calculate the total amount of shared parental leave; 
• the information an employee must provide to their employer; 
• the evidence an employer can ask for; 
• the notification requirements for taking leave; and
• how to vary leave dates.

An employee will only qualify for shared parental leave if they have 26 weeks’ service at the end of the 15th week before the expected week of childbirth or the week they are notified of being matched for adoption. Where the mother is entitled to maternity leave, they must bring that leave to an end in order to take shared parental leave instead. Where the mother is not entitled to maternity leave (because she is a worker, agency worker or self-employed) but nevertheless has a period not working during which she receives statutory maternity pay (“SMP”) or maternity allowance (“MA”), the father, but not the mother, will be entitled to shared parental leave.

The length of shared parental leave is 52 weeks less the period of time spent on maternity leave, or in receipt of SMP or MA. Employees can choose to take shared parental leave as one continuous period of leave or several discontinuous periods. If they choose discontinuous periods, the employer can either agree the request, propose alternative dates or refuse the request, in which case the employee becomes entitled to one continuous period of leave instead.

As regards the notification requirements, the employee must give eight weeks’ notice of their entitlement and intention to take shared parental leave, which must include a non-binding indication of the intended pattern of leave. Before being able to take a particular period of leave, they must also give at least eight weeks’ notice of the start and end date of each period of leave requested in that leave notice. The leave dates can be varied but generally no more than twice. 

The Regulations also deal with terms and conditions of employment during shared parental leave, the right to return, rights on redundancy and protection from detriment and dismissal, all of which are similar to the current provisions for maternity, adoption and paternity leave. Keeping in Touch days are also provided for and the entitlement has been set at 20 KIT days per employee, which includes KIT days already taken during maternity or adoption leave.

Maternity Leave and Adoption Leave (Curtailment of Statutory Rights to Leave) Regulations 2014 

These Regulations set out how maternity and adoption leave can be brought to an end so that shared parental leave can be taken. The employee must give eight weeks’ notice in a “leave curtailment notice”. The Regulations also set out the circumstances in which a leave curtailment notice can be withdrawn or revoked, for example if it was given before the child’s birth or if neither parent is entitled to shared parental leave.

Statutory Shared Parental Pay (General) Regulations 2014

These Regulations set out the eligibility conditions for claiming shared parental pay and the notification requirements.

The Government is asking for views on the draft regulations to see if the new system of shared parental leave and pay meets the needs of parents and employers and is as simple to use as possible. The Regulations, and in particular the notification requirements, are pretty complex but this is perhaps inevitable. It is to be hoped that the Government will publish template notices to assist employers in administering the new system.

Comments on the draft Regulations can be provided to Debra.macleod@bis.gsi.gov.uk. No time limit has been specified for responses. The draft Regulations can be viewed here.