Employment Contractsby Kate Russell
Employees – parental rights
Employees have a considerable body of statutory rights relating to their duties as parents and carers.
These start with pregnancy.
Time off for antenatal care
All pregnant employees are entitled to reasonable time off with pay to keep appointments for antenatal care made on the advice of a registered medical practitioner, midwife or health visitor. Antenatal care can include relaxation classes and parentcraft classes.
After the first appointment, you can ask to see a certificate confirming the pregnancy from a registered medical practitioner, midwife or health visitor, plus the employee’s appointment card or some other document showing that an appointment has been made.
A pregnant employee is entitled to a period of 52 weeks’ maternity leave, regardless of her length of service.
The woman can normally choose to start maternity leave at any time from the eleventh week before the expected week of childbirth up to the birth. A woman is entitled to work up to the week in which the baby is due if her health permits it. If she is absent with a pregnancy-related illness at four weeks before the expected birth date, then this triggers compulsory maternity leave.
Within 28 days of receipt of this notification, you must reply to her in writing, giving her the expected return date. The legislation assumes that a woman will take the full maternity leave to which she is entitled.
During the whole maternity leave period, a woman is entitled to benefit from all her normal terms and conditions of employment, except for remuneration (monetary wages or salary). She is entitled to return to her original job or a job that is a suitable alternative. If a redundancy situation has arisen, she is entitled to be offered a suitable alternative vacancy if one is available. It is for the employer to determine what is a suitable alternative job, taking into account her circumstances.
If the employer cannot offer suitable alternative work, she may be entitled to redundancy pay, but if she unreasonably refuses a suitable offer, she may forfeit her right to redundancy pay.
If a woman wants to return to work early from maternity leave, she must serve at least eight weeks’ notice of her date of return to work. If the employee attempts to return to work earlier than the end of her maternity leave without giving eight weeks’ notice, you may postpone her return until the full eight weeks’ notice has been given. However, you may not postpone her return to a date later than the end of her maternity leave period.
An employee whose return has been postponed under these circumstances is not entitled to receive wages or salary if she returns to work during the period of postponement. However, if you didn’t provide appropriate notification of when her leave should end the employee is not obliged to give the eight weeks’ notice.
If an employee was due to return to work after 52 weeks’ maternity leave on 1 August, but then decided to return to work after 39 weeks of leave (that is, on 9 May) she would need to give you eight weeks’ notice of the new date (that is, by 14 March).
Statutory maternity pay
A woman is entitled to Statutory Maternity Pay (SMP) if she has worked for her employer for a continuous period of at least 26 weeks, ending with the 15th week before the expected week of childbirth and has average weekly earnings at least equal to the lower earnings limit for National Insurance contributions.
To qualify for SMP the employee must tell her employer at 11 weeks before the expected week of childbirth:
- That she is pregnant, at least 28 days before she wants her leave to start
- The expected week of childbirth, by means of a medical certificate, if requested
- The date when she intends to start maternity leave.
SMP can be paid for up to 39 weeks; it is payable by the employer but partly (or, for small firms wholly) reimbursed by the state. The first six weeks are paid at 90 per cent of her average weekly wage and the balance paid at the current weekly statutory rate, see Statutory rates.
A woman who does not qualify for SMP may be entitled to Maternity Allowance (MA), paid by the Department of Social Security. To qualify, she must have been employed or self-employed for 26 weeks in the test period (the 66-week period before the expected week of childbirth), and have specified minimum average weekly earnings.
As a general rule, SMP is calculated on the basis of the average earnings of the woman taking maternity leave during the eight-week period ending on the last normal pay day before the end of the 15th week before the expected week of childbirth (‘the Relevant Period’).
SMP must be recalculated if she received a backdated pay rise which took effect during the Relevant Period.
A challenged the way in which legislation dictated that SMP should be calculated. The European Count of Justice found that not giving effect to a pay rise awarded throughout the entire duration of a woman’s maternity leave amounted to a breach of the equal treatment provisions of Article 119 of the EC Treaty.
As a result of this case, a woman’s SMP must be recalculated if she receives a pay rise which takes effect at any time between the start of the Relevant Period and the end of her maternity leave. Note that these rules apply not only when a pay increase is awarded, but also where such an increase would have been awarded had the woman not been absent on maternity leave. This is because a woman should not be subjected to a detriment due to the fact that she chose to take maternity leave.
If the increase in SMP means that a woman qualifies for SMP for the first time, employers are only required to pay the woman the difference between Maternity Allowance at the standard rate and the level of SMP.
Making contact during maternity leave
During the maternity leave period, you may make reasonable contact with an employee, and vice versa. The frequency and nature of the contact will depend on a number of factors, such as the nature of the work and the employee’s post, any agreement that you might have reached before maternity leave began and whether either party needs to communicate important information to the other, such as for example news of changes at the workplace that might affect the employee on her return.
The contact between you can be made in any way that best suits you both. For example, it could be by telephone, by email, by letter, involving the employee making a visit to the workplace, or in other ways.
You must, in any event, keep the employee informed of promotion opportunities and other information relating to her job that she would normally be made aware of if she was working.
It’s useful to meet before the maternity leave starts, to discuss arrangements for staying in touch with each other. This might include agreements on the way in which contact will happen, how often, and who will initiate the contact. It might also cover the reasons for making contact and the types of things that could be discussed.
What constitutes ‘reasonable’ contact will vary according to the circumstances. Some women will be happy to stay in close touch with the workplace and will not mind frequent contact with the employer. Others, however, will prefer to keep such contact to a minimum.
Keeping in Touch days
The legislation allows an employee on maternity leave to do up to ten days’ paid work – known as ‘Keeping in Touch days’ – under her contract of employment during the maternity leave period, without bringing the maternity leave and pay to an end. These must be by agreement with you. These days are different to the reasonable contact that you may make with one another.
The type of work that the employee undertakes on Keeping in Touch days is a matter for agreement between you. They may be used for any activity which would ordinarily be classed as work under the woman’s contract, for which she would be paid, but could be particularly useful in enabling a woman to attend a conference, undertake a training activity or attend for a team meeting, for example.
When Keeping in Touch days may be worked
Up to ten days’ work under the employee’s contract of employment may be undertaken at any stage during the maternity leave period. Note that it is not lawful for an employee to work under the Keeping In Touch scheme during the first two weeks after the baby is born (or during the first four weeks if the employee works in a factory).
Payment for Keeping in Touch days
Because Keeping in Touch days allow work to be done under the employee’s contract of employment, the employee is entitled to be paid for that work. The rate of pay is a matter for agreement with the employer, and may be as set out in the employment contract or as agreed on a case-by-case basis. However, you will need to bear in mind your statutory obligations about paying staff, such as ensuring you pay at least the National Minimum Wage and your responsibilities to ensure women and men receive equal pay for work of equal value.
If the employee is receiving statutory maternity pay, you should continue to pay her SMP for the week in which any Keeping in Touch work is done by the employee. You will be able to reclaim reimbursement for some, or all of this money in the normal way as before under the previous regulations.
If the employee is receiving SMP you may count the amount of SMP for the week in which the work is done towards the contractual pay agreed by the two parties. However, it will always be possible to agree an amount of contractual remuneration over and above the weekly SMP rate to reflect the work the woman has done. This is something that both parties need to agree between themselves before any work is done. Whatever amount of money is paid by you in respect of Keeping in Touch Days, you will continue to be able to recover funding for the SMP paid, as normal.
These start with pregnancy.
Antenatal rights for fathers and partners of pregnant women
From 1 October 2014, an employee who has a ‘qualifying relationship’ with a pregnant woman will be entitled to take unpaid time off work to attend two antenatal appointments.
The employee has a ‘qualifying relationship’ with the pregnant woman if the employee is:
- the baby’s father
- the pregnant woman’s husband, civil partner or partner
- an intended parent of a child in surrogacy arrangement, if they intend to apply for a parental order in respect of that child.
An employee may take a maximum of six and a half hours per appointment, including travelling and waiting time either side of the appointment. If the employee requires more time off, he/she should take the extra time on top of the statutory unpaid six and a half hours as part of his/her annual leave entitlement.
Companies may of course be more generous and allow longer unpaid time off, or even pay the employee for the time off, but this benefit must be allowed consistently. Allowing an employee to switch shifts may also be a way for him/her to avoid losing out on pay.
If the employee wants to be paid for the time off but you are not prepared to do so, you may suggest that the employee uses his/her holiday entitlement for the appointment. If you do that, make it clear to the employee in writing that you are prepared to allow the statutory right to unpaid time off for two appointments, but if the employee wishes the time to be paid then he/she should use holiday entitlement for it.
Proof of the appointment
Whilst you cannot demand proof that the employee is taking the time off for an antenatal appointment (like an appointment card and so on), you can request that the employee concerned signs a declaration stating:
- the qualifying relationship with the pregnant woman
- that the purpose of taking the time off is to attend an antenatal appointment
- that the appointment has been made on the advice of a registered medical practitioner, midwife or nurse
- the date and time of the appointment.
Notice and refusing the request
The law does not give specific guidelines on how much notice an employee must give for such a request, but it would be sensible for employees to give a reasonable amount of notice – probably a week – so that the company can practically plan around the employee’s absence. This guideline should be communicated to employees.
Employers can refuse the employee’s request to take time off, but the refusal must be reasonable. If the employee has given very little notice and business is particularly hectic at that time for example, this would likely be seen as a fair reason for refusal. The company must however allow the employee to rearrange the time off as he/she is entitled to it by law.
If you are refusing an employee’s request, meet with them to explain the reason, ask for his/her comments in case he/she knows of a way around the problem, and write to the employee to confirm your decision giving the reasons.
An employee whose children were born on or after 6 April 2003, enjoys a statutory right to paid paternity leave provided he meets the following qualifications:
- He must have or expect to have responsibility for the child’s upbringing
- He must either be the biological father of the child or the mother’s husband or partner (a female partner of the mother would qualify)
- He must have worked continuously for his employer for 26 weeks leading into the 15th week before the baby is due.
You can ask employees to provide a self-certificate as evidence that they meet these conditions.
Eligible employees may take either one or two consecutive weeks’ leave (but not odd days).
Leave can start
- From the actual date of the child’s birth
- From a chosen number of days or weeks after the date of the child’s birth (whether this is earlier or later than expected)
- From a chosen date.
Leave can start on any day of the week on or following the child’s birth but must be completed within 56 days of the actual date of birth of the child.
Employers will pay Statutory Paternity Pay (SPP) for either one or two consecutive weeks, as the employee has chosen. The rate of SPP will be at the current statutory maternity rate per week or 90 per cent of average weekly earnings if this is less. See Statutory rates.
An employee must give notice of his intention to take paternity leave by the 15th week before the baby is expected, unless this is not reasonably practicable. He will need to advise
- The week the baby is due
- Whether he wishes to take one or two weeks’ leave
- When he wants his leave to start.
The date on which he wants his leave to start may be amended, providing he tells you at least 28 days in advance (unless this is not reasonably practicable).
Employees are entitled to the benefit of their normal terms and conditions of employment, except for terms relating to wages or salary (unless their contract of employment provides otherwise), throughout their paternity leave.
Paternity leave and pay will be also available to employees following the placement of a child for adoption.
Since 6 April 2003, adopters have been given new rights to time off and pay. This allows one member of an adoptive couple to take paid time off work when their new child starts to live with them. The other may take paternity leave and pay. This leave is available whether a child is adopted from within the UK or from overseas.
To qualify for adoption leave, an employee must be newly matched with a child for adoption and have worked continuously for his employer for 26 weeks, ending with the week in which he is notified of being matched with a child for adoption. This right is not available in circumstances where a child is not newly matched for adoption – for example, when a step-parent is adopting a partner’s children.
The child may be anything from a new-born baby up to a child of 18.
Adopters are required to inform their employers of their intention to take adoption leave within seven days of being notified by their adoption agency that they have been matched with a child for adoption, unless this is not reasonably practicable. They should tell you when they expect the child to be placed with them and when they want their adoption leave to start. They should also provide documentary evidence from their adoption agency as evidence of their entitlement to Statutory Adoption Pay (SAP). You can also ask for this evidence.
Once you have been notified of the adopter’s intention to take adoption leave, you must reply within 28 days, setting out the date on which you expect the employee to return to work, if the full entitlement to adoption leave is taken.
Qualifying employees are entitled to up to 52 weeks’ adoption leave. Adopters who want to return to work before the end of their adoption leave period must give their employers eight weeks’ notice of the date they intend to return.
SAP is paid for up to 39 weeks at the current statutory maternity rate per week or 90 per cent of average weekly earnings, whichever is the lower. See Statutory rates.
If the child’s placement ends during the adoption leave period, the adopter can continue adoption leave for up to eight weeks after the end of the placement.
Additional paternity and adoption rights
Additional Paternity Leave (APL) applies to employees in relation to children whose expected week of birth is on or after 3 April 2011, or who are matched for adoption with a person who is notified of the match on or after 3 April 2011.
Eligible employees may take up to 26 weeks’ additional paternity leave within the first year of their child’s life provided that the mother has returned to work. APL is also available to adoptive parents within the first year after the child’s placement for adoption, provided that the child’s primary adopter who elected to take adoption leave has returned to work.
The earliest that APL can start is 20 weeks after the date on which the child is born, or 20 weeks after the date of placement of the child for adoption; it must end no later than 12 months after that date. APL must be taken as a single block in multiples of complete weeks. The minimum period is two consecutive weeks and the maximum period is 26 weeks.
During the period of APL, the employee’s contract of employment continues and with the exception of remuneration, he is entitled to receive all his contractual benefits. Pension contributions will continue to be made during any period when the employee is receiving statutory paternity pay but not during any period of unpaid APL.
If the employee is eligible to receive it, salary may be replaced by statutory paternity pay for some or all of the APL.
An employee who wishes to request APL must give eight weeks’ written notice of the date on which he wishes to take the leave, specifying the date on which the child was expected to be born; the actual date of birth or, in the case of an adopted child, the date on which the employee was notified of having been matched with the child and the date of placement for adoption.
He must also submit a self-certificate to his employer not less than eight weeks before the proposed start date of APL. This must state that the purpose of the leave is to care for the child and that he satisfies the relationship eligibility conditions.
The mother or primary adopter must submit a written and signed declaration form stating:
- his/her name, address and national insurance number
- the date that he intends to return to work
- that he has given notice to his employer of returning to work
- that he is entitled to statutory maternity pay, maternity allowance or statutory adoption pay
- the start date of his maternity or adoption pay period
- confirmation that the employee satisfies the relationship eligibility conditions
- consent to the Company processing the information contained in the declaration form, and
- that the employee is to her knowledge the sole applicant for additional statutory paternity pay and, in the case of a birth child, also that the employee is to her knowledge the only person exercising the entitlement to additional paternity leave in respect of the child.
The employer can ask the employee for evidence of the name and business address of the mother’s or adopter’s employer and a copy of the child’s birth certificate or, in the case of an adopted child, evidence of the name and address of the adoption agency, the date on which he was notified of having been matched with the child and the date on which the agency expects to place the child for adoption. The employee must supply this information within 28 days of it being requested.
The employee can change the leave start date, provided that he advises the Company in writing at least six weeks before the new start date or as soon as reasonably practicable.
The employer must reply in writing within 28 days, confirming the relevant start and end dates of APL.
Additional statutory paternity pay may be payable during some or all of APL, depending on the length and timing of the leave. An employee is entitled to additional statutory paternity pay if in addition to the qualifying criteria to take APL:
- his average weekly earnings for the period of eight weeks ending with the relevant week are not less than the lower earnings limit for national insurance contributions;
- the mother is entitled to statutory maternity pay or maternity allowance or, in the case of adoption, the primary adopter is entitled to statutory adoption pay, and the mother or primary adopter has returned to work;
- the mother or primary adopter has at least two weeks of his/her maternity or adoption pay period that remains unexpired.
Statutory paternity pay is paid on the same basis and at the same rate as maternity pay.
The same rules relating to reasonable contact and keeping in touch days apply to APL, as do to maternity leave.
If the employee wishes to return to work earlier than the expected return date, he must give the Company at least six weeks’ notice of his date of early return, preferably in writing.
An employee who takes OPL or APL is entitled to return to the same job that he did before starting paternity leave. It will be on the same terms and conditions of employment as if he had not been absent.
In certain circumstances employees qualify for unpaid parental. Parental leave is a right for parents to take time off work to look after a child or make arrangements for the child’s welfare. Parents can use it to spend more time with children and strike a better balance between their work and family commitments. This is sometimes known as ordinary parental leave (OPL) to distinguish it from shared parental leave.
Employees will be eligible for OPL if all of these apply:
- they’re named on the child’s birth or adoption certificate or they have or expect to have parental responsibility
- they’re not self-employed or a ‘worker’, eg an agency worker or contractor
- they’re not a foster parent (unless they’ve secured parental responsibility through the courts)
- the child is under 18
- the employee has gained a year’s service qualification
You can ask to see evidence to confirm the employee is the parent or the person who is legally responsible for the child as long as it’s reasonable to do so, e.g. you can’t ask for proof each time an employee requests leave. Evidence might take the form of information contained in the child’s birth certificate, papers confirming a child’s adoption or the date of placement in adoption cases or, in the case of a disabled child, the award of disability living allowance for the child.
Amount of Leave
Qualifying employees are entitled to 18 weeks’ OPL per child. This means that an employee who has twins is entitled to 36 weeks unpaid parental leave. The right to OPL applies until the child reaches the age of 18.
Unlike shared parental leave, OPL cannot be transferred between employees.
Employees remain employed while on OPL and are entitled to return to the same job or another suitable job, depending on the circumstances. Where the leave taken is for a period of four weeks or less, the employee will be entitled to go back to the same job. Some terms, such as contractual notice and redundancy terms, still apply.
If no other procedure has been agreed, the government’s default scheme automatically applies and the provisions described below will apply.
- In most cases, leave must be taken in blocks or multiples of one week, see example below, Rodway v South Central Trains.
- The exception to the above is that parents of disabled children can take leave in blocks or multiples of one day.
- In all cases, a maximum of four weeks’ parental leave in a year can be taken in respect of any individual child.
- The employee must give 21 days’ notice.
- The employer can postpone the leave for up to six months where the business would be particularly disrupted if the leave were taken at the time requested.
Employers can enhance the default scheme if they wish to do so. Employers and employees can agree their own procedures for taking parental leave. They can do this by using workforce or collective agreements or through individual arrangements. These agreements will only apply to an employee if it is part of the employee’s contract of employment.
Notice of OPL by Employee
The employee needs to give 21 days’ notice before the beginning of the expected week of childbirth (expectant mothers will be able to provide this information to their partners). In the case of adoption, the employee needs to give 21 days’ notice of the expected week of placement. In rare cases where this is not possible, an adoptive parent should give the notice as soon as is reasonably practicable.
Discuss the matter with the employee and confirm the postponement arrangements in writing no later than seven days after the employee’s notice to take leave. The notice should state the reason for the postponement and set out the new dates of parental leave. The length of the leave should be equivalent to the employee’s original request.
Leave can’t be postponed (delayed) if:
- You don’t have a ‘significant reason’, eg it would cause serious disruption to the business
- it’s being taken by the father or partner immediately after the birth or adoption of a child
- it means an employee would no longer qualify for parental leave, eg postponing it until after the child’s 18th birthday
If it’s postponed, you must:
- write explaining why within seven days of the original request
- suggest a new start date – this must be within six months of the requested start date.
You can’t change the amount of leave being requested.
A Week’s Leave
The default position is that OPL can only be taken in blocks of one week. There is no right to take just one day. This was confirmed by the Court of Appeal in the following case.
R had requested one day off work in order to care for his son. This was refused by his employer because his job could not be covered. When R took the day off anyway, he received a formal warning following a disciplinary hearing for unauthorised absence. He therefore complained to a tribunal that he had suffered a detriment.
The court held that the minimum period of leave for which an employee could apply was one week. One week is based upon an employee’s normal working week. The regulations specifically refer to a week’s leave so the employer was right to refuse the employee’s request and the disciplinary action had been justified.
A ‘week’ equals the length of time an employee normally works over seven days.
If an employee works 3 days a week, one ‘week’ of parental leave equals 3 days. If an employee works irregular weeks the number of days in a ‘week’ is the total number of days they work a year divided by 52. The exception to this is the parents of disabled children who can use their leave in single days.
You are not required to keep records of parental leave taken, although you may want to do so for your own purposes. When an employee changes jobs, you are free to make enquiries of a previous employer or seek a declaration from the employee about how much parental leave he or she has taken.
Carrying leave over from a previous job
Parental leave applies to each child not to an individual’s job.
An employee is entitled to 18 weeks. He has used ten with a previous employer. He can use up to eight weeks with their new employer if he is eligible.
Adoption pay and leave
From 5 April 2015 the government is changing the rights on adoption leave and pay.
The main adopter will be able to take paid time off for up to five adoption appointments. The secondary adopter will be entitled to take unpaid time off for up to two appointments.
Adoption leave will become a ‘day one’ right, so employees will no longer need to have 26 weeks’ continuous employment to be eligible.
The Statutory Adoption Pay will change – the first six weeks will be paid at 90 per cent of the employee's normal earnings, bringing it in-line with maternity pay.
Some surrogate parents will become eligible for adoption leave.
Shared parental pay and leave
In April 2015 new rights will come into force enabling working parents to share leave in the year after their child’s birth or placement for adoption and to take leave in a more flexible way. Eligible employees whose baby is due on or after 5 April 2015 or who have a child placed with them for adoption on or after that date can take shared parental leave (SPL) and statutory shared parental pay (SSPP). This will be available to a birth mother and the child’s father or the mother’s partner i.e. a person to whom the mother is married; or in a civil partnership with; or a partner with whom the mother is living. As well as birth parents and adoptive parents, employees who are parents by virtue of surrogacy arrangements are also beneficiaries of the new rights. Please note that for brevity I refer to ‘parents’; this is intended to include all categories.
In most cases I have also used ‘she’ and ‘her’ to describe the parent-employee to avoid the incorrect ‘their’ when referring to an employee in the singular and the clumsy ‘he/she’ device. It is of course intended to include to male employees as appropriate
Agency workers who are entitled to statutory maternity pay or statutory paternity pay are not eligible for SPL but their employed partner may be. Agency workers and/or their partners may be entitled to SSPP.
In a nutshell, unlike maternity and paternity leave, employees who opt for SPL and SSPP will be able to stop and start their SPL and return to work between periods of leave. Leave or pay taken by one parent will reduce the pool of leave and pay that is available to the other parent. SPL and pay cannot begin before the birth and must be taken within one year of the birth.
The default position is that a female employee will take up to 52 weeks of maternity leave. Ordinary paternity leave can be taken by the father. Note that additional paternity leave and pay will no longer be available for babies due after 5 April 2015. The right to SPL will be created where an eligible employee brings her maternity leave to an end early by ‘curtailing’ the maternity leave. The untaken weeks of maternity leave can be taken as SPL to a maximum of 50 weeks if the mother or her partner is eligible. The right to SSPP will arise where an eligible mother brings her maternity pay to an end early. The untaken maternity pay (or maternity allowance) will become available as SSPP to a maximum of 37 weeks. A mother cannot curtail her maternity pay if neither she nor her partner is entitled to SPL or SSPP. See the STEP by STEP chart below.
Eligibility criteria for SPL
Qualifying employees must actively opt into the SPL system. Sometimes both parents will qualify for SPL. Sometimes only one parent will be eligible. There are several qualifying criteria.
- An employee must have been continuously employed by you for 26 weeks up to and including the 15th week before the week in which the baby is due to be born, and still be employed by you in the week before any leave is due to start. This is called the ‘continuity of employment test’.
- Your employee must share the main responsibility for the care of the child to whom the SPL and SSPP relates with the other parent (i.e. her partner or the child’s father) at the date of the child’s birth.
- The other parent must meet an employment and earnings test. To meet this test, the other parent must have been an employed or self-employed earner in Great Britain for a total 26 weeks (not necessarily continuously) in the period of 66 weeks leading up to the week in which the child is due and to have earned an average of £30 a week in 13 of those weeks (not necessarily continuously).
SSPP qualifying conditions
The relevant qualifying criteria for SSPP are the same as those required for statutory maternity and paternity pay. An employee will only qualify for SSPP if she or he qualified for statutory maternity pay or statutory paternity pay. A mother who qualified for maternity allowance will not qualify for SSPP, but her employed (or agency worker) partner might.
Where a mother is entitled to statutory maternity pay (or maternity allowance) she can give eight weeks’ notice to end her maternity pay or maternity allowance to give rise to SSPP before returning to work. Either she or her partner or both can take SSPP, if they are eligible.
In order to qualify for SSPP, your employee must
- meet the qualifying requirements for SPL and have a partner who meets the employment and earnings test
- have earned not less than the lower earnings limit in the relevant period.
An employee who has been entitled to any of these and who has a partner (with whom she shares the main responsibility for the care of the child) who meets the employment and earnings test will be eligible for SSPP.
A mother cannot curtail her statutory maternity pay without first having taken two weeks of maternity pay or allowance after the birth. A maximum amount of 37 weeks of SSPP can be created.
Whilst returning to work automatically ends a mother’s entitlement to maternity leave, it does not end the maternity period. This continues to run ‘in the background’ for 39 weeks from when it was started.
If the mother wants to opt into SSPP after returning to work, and she is still in the maternity pay period (the 39 weeks from when it started), she must give you a notice to end her maternity pay period at least nine weeks before the expiry of the 39 week period. If she claims maternity allowance from Jobcentre Plus, she must tell Jobcentre Plus that her maternity allowance period is to end. The maternity pay or allowance period will end on the last day of the pay week in which the notice is given. See steps for qualification on chart below.
Opting for SPL and pay
As a minimum, the mother must take her compulsory maternity leave, which is usually two weeks. The maximum amount of SPL is 50 weeks and the maximum amount of SSPP is 37 weeks. Special rules apply in the event of the death of the mother and the other parent can be entitled to up to 52 weeks of SPL and 39 weeks of shared parental pay. Where a mother takes 51 weeks or more of the 52 weeks of maternity leave, no SPL can be created. It is only the untaken balance of her maternity leave that can be taken as SPL. Where a mother takes 38 weeks of more of statutory maternity or maternity allowance, no SSPP can be created.
An eligible mother who wants to take SPL will be able to end her maternity leave by either returning to work before the end of her maternity leave period or giving you notice to end her maternity leave on a date in the future that she specifies. This also enables the mother’s partner to take SPL from the birth of the child This notice must be given at least nine weeks before her 52 weeks of maternity leave is due to end.
The current position is that a mother can end her maternity leave before the end of the 52 week entitlement by giving you eight weeks’ notice of her planned return to work and then going back to work. This will continue. Once the mother’s maternity leave has ended it cannot be re-started.
When a mother gives you notice to end her maternity leave and it is accompanied by a notice of entitlement to SPL (or a declaration that her partner has given his employer notice of his entitlement to SPL and the mother consents to the leave her partner intends to take), she is bound by this notice to end her maternity leave (except in very limited circumstances). Once notice to curtail maternity leave has been given it can only be withdrawn if she has not returned to work, the curtailment date has not passed, and one of the following circumstances apply.
- Where it is discovered in the eight weeks following the notice that neither the mother nor her partner has any entitlement to SPL or pay.
- In the event of the death of the partner.
- (Mothers only) If the notice was given before the birth, and the mother revokes her maternity leave curtailment notice in the six weeks following the birth.
If a mother revokes her notice in the first two circumstances, she cannot later opt into SPL for the same child.
If the third situation applies, and her maternity leave curtailment notice is revoked within six weeks of the birth, the mother will be able to opt into SPL at a later date with the same partner – either by returning to work and then giving notice of entitlement to SPL to you; or by giving another notice to curtail her maternity leave. Where a mother gives notice to curtail her maternity leave before the birth and then changes her mind within six weeks of the birth, her partner’s entitlement to SPL stops.
If the mother revokes her notice to end maternity leave she remains on maternity leave. The entitlement to maternity leave is restored to a total of 52 weeks, even if her partner has taken SPL prior to the mother revoking her leave curtailment notice.
Notice of the intention to revoke a leave curtailment notice must be given in writing.
It is the employee’s responsibility to check she is eligible for SPL and/or pay and she must give you a written declaration confirming that she is eligible. If she intends to exercise this right she must notify you at least eight weeks in advance of taking any SPL and/or SSPP and her intention to take it. She will also provide a declaration from her partner that he meets the ‘employment and earnings test’ and he (the partner) consents to your employee taking SPL and/or pay. You are not required to check whether the information provided by the other parent in his declaration is correct or whether he meets the employment and earnings test. You are not required to speak to the other parent or his employer but you may do so if you wish. You are entitled to ask your employee for the name and address of the other parent’s employer and your employee is required to provide it. You may also ask for a copy of the child’s birth certificate (or a declaration from your employee giving the date and place of birth if no birth certificate is available).
The notice of entitlement will include:
- the number of weeks that the mother took maternity leave (or will have taken, where notice has been given to curtail the leave on a specific future date);
- the number of weeks of SPL and pay available to your employee and her partner;
- how much each intends to take;
- a declaration from your employee’s partner stating that he meets the employment and earnings test. This declaration will also state that he gives his consent to your employee taking SPL and/or pay and to you to processing information provided by him; and
- a non-binding indication of how your employee will take the SPL that is available to her.
Notification of entitlement to SPL and pay and notification to ‘book’ SPL must be in writing and may be given by electronic communication (where you have agreed to this method), post or personal delivery.
How much SPL and pay can be taken?
The maximum number of weeks of SPL and pay that could be available to the parents jointly is 50 weeks of leave and 37 weeks of pay. How much SPL and pay your employee may take depends on when the mother curtails her maternity leave and pay. SPL is whatever remains of the mother’s 52 weeks of entitlement after returning to work or the date of the notice to curtail maternity leave and pay or maternity allowance. In essence, the untaken balance of any maternity leave can be taken as SPL and the untaken balance of any maternity pay (or maternity allowance) can be taken as SSPP.
The calculation of the number of weeks of SPL that is available starts with 52 weeks (factor in the two weeks compulsory leave) and from this must be deducted the number of weeks of maternity leave taken by the mother. The total amount of SPL created by a mother curtailing her maternity leave is calculated as follows:
52 weeks less
either: The number of weeks of maternity leave taken at the point of the mother’s return to work if she has not given notice to curtail her leave and opt into the shared parental system;
or: The number of weeks of maternity leave that will have been taken by the mother at the curtailment date specified in the leave curtailment notice.
The total amount of SSPP created by a mother curtailing her maternity pay period is calculated as follows:
The total entitlement is 39 weeks less
either: The number of weeks of maternity pay taken by the mother at the point of her return to work if she has not given notice to curtail her leave and opt into the shared parental system
or: The number of weeks of the maternity pay at the curtailment date (irrespective of whether the mother returns to work in advance of their leave curtailment date).
Where a mother returns to work without opting into the SSPP system and opts in at a later date, the number of weeks of maternity pay or maternity allowance taken for the purpose of SSPP is determined at the point of the mother’s return to work. If she is subsequently absent from work (for sickness, annual leave, etc.) and is still in her maternity pay or allowance period, she is entitled to statutory maternity pay when she is absent from work. However, any weeks of maternity pay paid to the mother following her return to work are disregarded for the purpose of calculating entitlement to SSPP pay.
Where a mother gives notice to curtail her maternity pay period, then the number of weeks of the maternity pay period at the curtailment date are determined at that date. So if the mother returns to work in advance of the date given on the pay curtailment notice, she does not generate an entitlement to more weeks of SSPP.
Is it discriminatory to pay SMP to women but not enhance ShPP for men?
Many organisations enhance maternity pay. When shared parental rights were introduced it was unclear whether men who work in organisation where there is enhanced maternity pay would be entitled to enhanced shared parental pay. The EAT has now confirmed that there is no automatic right to have enhanced pay in these circumstances.
New father Mr Ali was given two weeks’ leave on full pay, when female staff in the same company were allowed to take 14 weeks’ maternity leave on their full salary.
Mr Ali’s wife had been advised to return to work to help with her post-natal depression. Under the company’s policy, Mr Ali was able to take two weeks’ fully-paid paternity leave following the birth of his child, followed by a number of weeks’ annual leave.
He argued before an employment tribunal that it was direct sex discrimination to pay women full pay and to pay a lesser amount to fathers. The tribunal accepted Mr Ali’s argument.
Capita appealed. The EAT found the employment tribunal had erroneously interpreted that Mr Ali’s circumstances were comparable to those of a woman who had recently given birth as both had leave to care for their child.
The judge found that the employment tribunal had failed to consider the purpose of paid maternity leave when it came to its original decision, and determined that it was not discriminatory to refuse a father the same rights as a new mother after the birth of a child.
The EAT said the purpose of maternity pay and leave is to recognise the “health and wellbeing of a woman in pregnancy, confinement and after recent childbirth”.
Booking SPL and pay
Having notified you of her entitlement to take SPL, the employee has to submit a notice to book a period of leave at least eight weeks before leave can be taken. A booking notice can be submitted at the same time as the notice of entitlement is submitted.
Where an employee has notified you of entitlement to SPL or pay and has also given notice to book a period of SPL or pay to start within eight weeks of the child’s expected week of birth and the child is born early, your employee may take the leave and pay that she has booked after the actual birth if she wishes. She needs to give you a notice to vary the SPL and pay originally applied for as soon as practicable following the birth. For example, if the mother’s partner was planning to take two weeks of paternity leave after the birth and had booked three weeks of SPL and/or pay to be taken after the paternity leave (thus being at home for a continuous period of five weeks), he could still take the same amount of SPL and pay two weeks after the actual date of the birth, if he notified their employer of the change as soon as reasonably practicable after the child’s birth.
This arrangement does not apply to SPL or pay that was booked for a period starting after eight weeks after the birth; or to any change in the number of weeks of leave or pay booked. Any changes to such leave or pay would be subject to the notice variation requirement and would be subject to eight weeks’ notice, irrespective of the child having been born early.
There is also a modification where a parent has notified entitlement to SPL that she has not yet booked, and the child is born eight or more weeks before the week in which the child was due to be born. In these cases the parent can book a period of leave to start within eight weeks of the actual birth if she gives the notice as soon as reasonably practicable after the child’s actual birth.
Where the parent has not given a notice of entitlement to SPL, and the child is born eight or more weeks before the first day of the expected week of birth, the requirement for eight weeks’ notice before the start date of a period of leave is to be treated as satisfied if the notice is given as soon as reasonably practicable after the actual date of birth. Similarly the requirement to given eight weeks’ notice to book a period of leave is to be treated as satisfied if the period of leave is to start within eight weeks.
Your employee may only give you three notices to book leave or to vary a previously agreed pattern of leave. If you want to, you can choose to accept more than three booking notices. The limit of three booking notifications doesn’t mean leave can only be taken in three blocks. Each of the three notifications to book leave may notify a single, continuous block of leave or may request discontinuous periods of leave. Note that a withdrawn notification will not count towards the cap of three notifications.
Your employee can only take a pattern of discontinuous leave if you agree. If a notice requests leave in discontinuous weeks, you are entitled to require all the weeks of leave to be taken in a single block. So, for example, if an employee gives you a booking notice to take 12 weeks of SPL not in a single block, but in a discontinuous pattern taking every other week off for the next 24 weeks, the employee has the right to 12 weeks leave, but she does not have the right to the pattern of leave proposed in the booking notice.
Your employee may request a pattern of discontinuous leave (e.g two weeks in July, two weeks in August, all of October and three weeks in December) in the same notification. You do not have to agree to this pattern. You will have a two week discussion period, starting on the date that your employee gives you the booking notice, to talk to the employee about the pattern of leave that she has requested and propose alternatives, or to refuse the pattern. You cannot stop your employee from taking the amount of leave requested in the notice, but you can change how and when it is taken. If you refuse the pattern proposed and do not agree any other pattern with the employee, the weeks of leave in the notice may be taken in a single continuous block starting on a date specified by the employee (not less than eight weeks from the date the original notice was given to you). Your employee has five days after the end of the two week discussion period in which to specify the date she will start her leave. If no date is specified, the leave will begin on the start date of the first period of discontinuous leave that the employee originally applied for. The leave cannot start within eight weeks of the date that the booking notice was submitted.
If she has given you a notice to book discontinuous weeks of leave, your employee can withdraw the booking notice in the two weeks after the booking notice is given (up to the 15th day), unless you have agreed the pattern in the notice or you have already reached an agreement with the employee in that period.
If the employee has submitted a notice containing a pattern of discontinuous leave, you can do one of the following:
- Agree the pattern of leave proposed by the employee;
- propose an alternative pattern of leave that must be agreed by the employee;
- Refuse a pattern of leave and require the leave to be taken in a single block;
- not respond to the employee’s notice.
If you do not respond within two weeks of being given the notice requesting discontinuous leave, the notice may be withdrawn by the employee on the 15th day or, if it is not withdrawn, the leave may be taken in a single continuous block. The employee has five days from the end of the two week discussion period to specify the date on which the single block of leave will start (no earlier than eight weeks from the date the booking notice was given). If the employee does not do so, the single block of leave starts on the first date of the first week of leave proposed in the original booking notice. If the employee wants to change this, she must submit a notice of variation, subject to eight weeks’ notice.
You should discuss the employee’s proposals for taking SPL at the point of notifying entitlement when a non-binding indication of how she expects to take the leave must be submitted. Such a conversation will enable you both to understand what is most likely to work for both sides.
If an eligible employee has submitted a proper booking notice for a continuous (single) block of leave, you cannot refuse. You do not have to respond to the notice, but it would be good practice to acknowledge receipt of the notice and the dates of leave booked.
An employee can give notice to end a period of leave earlier or later than previously notified, or to aggregate a number of discontinuous weeks into a single block using a variation notice. An employee has two weeks to withdraw the notice and doesn’t have to give a reason if she does withdraw. If she does so, she will have to submit a notice to vary the leave, giving at least eight weeks’ notice of any change. An employee is not entitled to withdraw a notice for a single continuous block of leave, but may do so if you agree to the withdrawal. A notice to vary agreed leave counts towards the cap of three notifications to book leave.
Your employee can notify you separately about pay and the same eight weeks’ notice applies.
Once the 15th day has passed, any change to the period of leave booked must be done by a variation notice. This is subject to eight weeks’ notice and counts towards the cap of three booking notifications.
If you refuse a pattern of discontinuous leave, the employee can take that leave as a single continuous block at a time starting on a date of her choosing (no less than eight weeks from the date the notice was given).
The following booking notices count towards the cap of three:
- A notice to book continuous or discontinuous periods of leave that is not withdrawn on or before the 15th day following submission.
- A notice to vary a previously notified (or varied) period of leave.
A request by an employer to an employee to vary a period of agreed leave does not count towards the employee’s maximum number of notices.
Patterns of leave will only work if both parents’ employers agree to the patterns of leave that their respective employees have proposed. If one employer says that the leave must be taken in a single block, this may not work for the family. The BIS guidance recommends a two week discussion period. An employee can withdraw a booking notice at the end of the two week period (on the 15th day) without penalty. A booking notice withdrawn by the 15th day following submission does not count towards the cap of three notifications.
An employee can change an agreed pattern of leave provided that it doesn’t exceed the cap of three notifications. The process for giving a variation notice changing leave patterns or agreeing new patterns will be the same as the initial process for booking leave.
Heather gave her employer a booking notice on 1 May with eight weeks’ notice to take SPL from 1 July for 6 months. On 1 June, her plans changed as her mother-in-law came to live with her and offered to provide free child care. As Heather and her husband needed her income, they decided Heather would return to work at the earliest opportunity. She submitted on 1 June a notice to end her SPL in eight weeks’ time (1 August). In total, Heather took four weeks of leave rather than six months. Her employer had two months to stand down the cover arrangements that he had put in place for six months starting on 1 July. The booking and variation to the leave used two of Heather’s three opportunities to book SPL.
If an employee and their partner decide to transfer all of the leave to one parent the the right to notifications does not transfer with the extra leave. The cap of three notifications applies to each employee (and is per employer, if the employee has two or more employers) and cannot be transferred between the parents as the leave can.
SPL in Touch Days
Each parent entitled to SPL or pay will have an individual entitlement to 20 SPL in touch (SPLIT) days. This will enable them to work on up to 20 days (per employer if a parent has multiple employers) – either continuously or on odd days – without bringing to an end their SPL or pay.
Whilst SPL and pay will need to be taken in minimum blocks of one week, employees eligible for SPL can work part-time if both they and their employer agree.
An employee can use up to 20 SPLIT days to return to work for part of a week without bringing their SPL to an end. An employee would also be able to receive statutory shared parental pay for that week. This will enable parents to try out a new working pattern before making a formal flexible working request, or to return to work in a gradual way.
Because SPLIT days allows work to be done under the employee’s contract of employment, the employee is entitled to be paid for that work. The rate of pay is a matter for agreement with the employer, and may be as set out in the employment contract or as agreed on a case-by-case basis. However, the employer will need to bear in mind their statutory obligations about paying staff, such as ensuring that the employee is paid at least the National Minimum Wage.
There is no prohibition on reasonable contact between an employer and an employee on SPL. The legislation provides for SPLIT days for the employee to attend the workplace, and telephones calls can certainly take place whilst the employee is on SPL.
An employee working a SPLIT day is at work, so should be paid as per the usual contractual arrangements.
Unless the employer is offering occupational shared parental pay, then an employee on SPL who is entitled to
SSPP must receive this statutory payment for the weeks she is entitled to it.
Shared Parental Leave - STEP BT STEP
To trigger shared parental leave the mother / primary adopter must:
Qualification - Stage One
To qualify an employee must:
Qualification - Stage Two
The parent wanting to take shared parental leave must satisfy the ‘continuity of employment’ test. The partner must meet the ‘employment and earnings test’.
Continuity of Employment
Employment and Earnings Test
Sometimes only one parent will be eligible e.g. one parent may be self-employed. That individual may not be entitled to shared parental leave but may pass the ‘employment and earnings test’. If the other partner meets the ‘continuity of employment’ test s/he may still qualify for shared parental leave.
If both parents satisfy both tests then the leave may be shared between them. It is up to the two of them how the leave will be shared.
Only two people will be eligible for shared parental leave per birth / placement E.g. mother and father, or mother and her partner.
Notice of Entitlement
If an employee is eligible and intends to take shared parental leave, s/he must provide the employer with a notice of entitlement. This must be submitted at least eight weeks before the employee intends to take the leave.
The employee intending to take the leave must provide their employer with the following information:
The partner of the employee must also provide the partner’s employer with a signed declaration. This should state:
This is an unbroken period of leave. Employees have a statutory right to take a continuous block of shared parental leave. This cannot be refused by an employer. For example, this could be a notification for a period of six weeks’ leave. Eligible employees have a statutory right to take SPL in this way.
This is a period of leave over time with breaks between weeks of leave where the employee returns to work. An employee can put in up to three requests for discontinuous leave, though each block of time requested may be split into smaller periods of time. The minimum period of SPL is a week.
A request of discontinuous leave can only be taken with the employer’s agreement. For example, four weeks’ SPL followed by three weeks back at work, followed by a further four weeks’ SPL. When a request for discontinuous leave is made the employer and employee have 14 calendar days to discuss the request. If the leave is not agreed the total amount of leave in the request must be taken as continuous block unless the employee withdraws the notice and submits a new request.
The default position
Within 14 calendar days of the original notification. If an agreement is reached regarding when the employee will take their leave, no default provisions will apply. If no agreement is reached regarding when the employee will take their leave, no default provisions will apply. If no agreement is reached or the employer refuses the discontinuous leave notification or the employer makes no response to a discontinuous leave notification, the default provisions will apply.
Within 15 calendar days of the original notification. If no agreement is reached, the employee may withdraw their discontinuous leave notification. If the employee does withdraw the request it will not count as one of their three notices to book leave. If the employee does not withdraw their request, the discontinuous leave notification automatically defaults to a period of continuous leave.
Within 19 calendar days of the original notification. The employee can choose when the continuous leave will commence but it cannot start sooner than eight weeks from the date the original notification was given. If the employee does not choose, the start date automatically defaults to the date the requested discontinuous leave would have first started.
Shared Parental Leave Notice
Shared parental leave can:
Variation / Cancellation of Shared Parental Leave
Situations may arise where an employee needs to vary or cancel a booked period of shared parental leave. To do this an employee must give notice in writing. Any variation of leave must be made eight weeks before the dates varied begin. A notice to vary any leave will count towards one of the three notifications.
If an employee has already used up all their notifications the employer is under no obligation to grant the variation / cancellation. An employer can still choose to consider the request and decide whether it is reasonably practicable to grant it.
If an employer proposes a variation to the leave and the employee agrees this would not count as one of the notifications. Any variations to leave should be confirmed in writing.
Shared Parental Pay Qualification
To qualify for shared parental pay a parent must, as well as passing the continuity of employment test also have earned an average salary of £111 for the eight weeks prior to the 15th week before the expected week of childbirth / placement. The other parent must meet the employment and earnings test.
Shared Parental Pay Notice
If an employee wishes to claim shared parental pay the mother must give notice to reduce or end her maternity / adoption pay or allowance. This notice can be provided with the notice to take shared parental leave.
The employee wishing to claim the pay must then give notice to the employer. This must include:
The qualifying parent will receive statutory shared parental pay. As with maternity / paternity / adoption pay an employer can choose to enhance this. If statutory shared parental pay is enhanced it must be done so for both male and female employees.
Communication during Shared Parental Leave
Early communication between employer and employee during shared parental leave is probably the key towards agreeing leave that works best for both parties. Reasonable contact allows employers and employees to keep up to date on changes in the work place and personal circumstances which may help ease the return to work. The employer has a legal obligation to the employee while s/he is away from work and should keep the employee informed about issues such as job opportunities.
Shared Parental Leave in Touch Days
An employer and employee can agree up to 20 Shared Parental Leave In Touch (SPLIT) days. An employer is under no obligation to offer SPLIT days and an employee does not have to agree to them.
SPLIT days can be used where it may be beneficial for an employee to join in with a work related activity such as a team meeting or training session. These days may also be used as part of an employee’s gradual return to work.
Payment for SPLIT Days
Payment for SPLIT days needs to meet National Minimum Wage requirements. To avoid discrimination the employee should be paid for the work which s/he has done at their normal rate of pay.
Both employer and employee should be in agreement as to how payment for SPLIT days will work. Contractual pay may top up shared parental pay to meet full pay or contractual pay may be in addition to shared parental pay.
Annual Leave during Shared Parental Leave
An employee taking shared parental leave will accrue holiday in the normal way. Employees may wish to take leave before or after a period of leave. Where possible an employee should take leave within the holiday year that it accrues. Where it is not possible to take it in the year it accrues, the employee should be allowed to carry it forward to the next holiday year.
Returning to Work
Following a period of shared parental leave totalling 26 weeks or fewer an employee has the right to return to the same job on no less favourable terms and conditions. The period of leave can include periods of maternity / paternity / adoption leave.
Where an employee takes a period of leave amounting to more than 26 weeks an employee has the right to return to the same job unless not reasonably practicable. In these circumstances the employer must offer a suitable alternative role on no less favourable terms and conditions.