A new era in parental leave

Mary Clarke, employment partner at law firm DLA Piper, examines the draft regulations for shared parental leave and finds them complex for both employers and employees to manage.

9668890863_ac2b8ae43a_oThe much trailed overhaul of the UK’s existing maternity and paternity regime has now had some flesh put on the bones with the publication of a series of draft regulations. These regulations support the new Children and Families Act which has received Royal Assent.

The new regime is one of the most important employment law developments for some time as it represents a radical departure from the traditional concepts of maternity and paternity leave. The system will allow both parents to share up to 50 weeks’ leave (with an additional 2 weeks’ compulsory maternity leave for the mother).

The changes are due to come into force in October 2014 and will apply to employees expecting a baby on or after 5 April 2015. These parents will be able to choose what type of leave to take. Mothers will still be entitled to take 52 weeks’ maternity leave and fathers will still be entitled to take two weeks’ ordinary paternity leave. However, if both parents fulfil the eligibility criteria, the parents will be able to give notice to opt to cut short statutory maternity leave and instead take shared parental leave.

In order to qualify for shared parental leave, the mother must:

  • have 26 weeks’ service
  • have main responsibility for the care of the child (apart from any responsibility of the father’s)
  • have curtailed her statutory maternity leave
  • comply with the notice requirements

In addition, the father must have been engaged in employment as an employed or self-employed earner for 26 of the 66 weeks preceding the expected week of confinement (EWC) and have average weekly earnings above the lower earnings limit.

In order for the father to take shared parental leave, he must:

  • have 26 weeks’ service
  • have main responsibility for the care of the child (apart from any responsibility of the mother’s)
  • comply with the notice requirements

The mother must also have been engaged in employment as an employed or self-employed earner for 26 of the 66 weeks preceding the EWC, have average weekly earnings above the lower earnings limit and have curtailed her statutory maternity leave.

Shared parental leave must be taken in blocks of at least a week but can be taken discontinuously. The parents must give their employers notice of the leave they wish to take, and the rules are complicated. Not less than 8 weeks before the start date requested for a period of leave, they must give their employers a written notice which sets out the start and end dates of each period of shared parental leave requested. The mother and father can vary that leave by serving another written notice. An employee can give up to three notices in total i.e. three notices of new periods of leave (this limit can be waived, however, by agreement between the employer and employee). Where the employee requests discontinuous periods of shared parental leave the employer can agree to it, propose alternative dates or refuse the request altogether, in which case the employee will be entitled to one continuous period of leave. Alternatively he or she may withdraw the notice (presumably so that their spouse or partner may take the leave instead). All leave must be taken within 52 weeks of the child’s birth.

The regulations also 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. ‘Keeping in touch’ days will be increased to a maximum of 20 per employee. These are days when the employee can undertake any work that they would normally do under their contract of employment without bringing their leave to an end.

The regulations also set out the eligibility conditions for either parent to claim up to 39 weeks’ shared parental pay, and the notifications that must be given to the employer in order to qualify. The pay regime is similar to statutory maternity pay, although inherently more complex due to the nature of shared parental leave.

The provisions also apply to adoptive parents where the child is matched or placed for adoption on or after 5 April 2015.

The government’s aim to allow parents to share a period of parental leave is a laudable one. However, at first blush at least, the regulations which will implement the system look terribly complicated – for both employers and employees. Employees and employers must get to grips with a series of complex eligibility requirements and notifications.

Time will tell whether this new system will truly revolutionise family friendly rights for the UK’s workforce or whether, in reality, it becomes a mire of uncertainty for employees and an administrative nightmare for employers.

15603627_1_UKGROUPS(Mary_Clarke)Main image credit: https://www.flickr.com/photos/vijayvenkatesh/

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