Resources

Shared Parental Leave – Questions and Answers

16 March 2015

Q – Is shared parental leave available to parents of a child whose due date was before 5 April 2015 but who was born after that date?

A- No, shared parental leave is only available to parents with children whose expected week of childbirth was on or after 5 April 2015.

If a baby whose due date was, for example, 1 April 2015 is born on 6 April 2015, its parents would not be eligible for shared parental leave. If a baby is due on or after 5 April 2015, but is born before 4 April 2015, its parents will be eligible for shared parental leave.

The implementation of shared parental leave and pay is linked to the baby’s due date – the actual date of birth is irrelevant.

Q – If an employee’s employment is terminated during shared parental leave, will the employee forfeit the remainder of their shared parental pay?

A- No. The Acas guidance on SPL states that “if an employee’s employment comes to an end while they are still entitled to some ShPP then any remaining weeks will usually remain payable unless they start working somewhere else”. This is set out in section 171ZX of the Social Security Contributions and Benefits Act 1992, which echoes the provisions relating to statutory maternity pay.

Q – Is an employee who gives short notice still entitled to parental leave?

A – No, unlike the maternity and paternity provisions which provide that notice can still be provided if given “as soon as reasonably practicable”, the SPL regulations provide that notice must be submitted to the school at least 8 weeks before the leave is due to start and the employee is only entitled to SPL and ShPP if the notice requirement is complied with.

A school could, therefore, refuse to accept a late notice but practically, the employee could submit a new notice giving the required 8 weeks.

If a school accepts late notice, there is an argument that any leave taken is discretionary – and as such outside the statutory scheme. As a result, it is possible that HMRC is not liable to reimburse the school for any ShPP. However, it is likely that this was not Parliament’s intention and this anomaly is therefore likely to be addressed in the future.

Q – Can a school require SPL to be taken in a continuous block?

A – It would not be advisable to adopt this approach in a SPL policy. Employees can request discontinuous SPL but a school will not be bound to accept this. However, it is possible for a school to encourage the taking of SPL in one continuous block.

Q – Can an employee still claim enhanced contractual maternity pay if she switches from maternity leave to SPL?

A – No. In order to access the SPL scheme, a mother would need to opt out of her rights under the maternity leave scheme. This would almost certainly involve her opting out of any contractual maternity rights.

It is open to schools to operate enhanced contractual Shared Parental Pay, and if the mother has opted to take SPL, she would be eligible for any such pay (if available). If a school which offers enhanced maternity pay does not extend this to enhanced shared parental pay, there could be an argument that this is indirectly discriminatory on the grounds of sex, as men cannot take maternity leave but can take SPL. It may be difficult for a school to justify the difference, other than on the basis of pure cost, which cannot amount to justification on its own.

Q – Will ShPP be a fixed rate or will any of it be paid at 90% like statutory maternity pay?

A – ShPP will be paid at a fixed rate equivalent to the flat rate of statutory maternity pay. SMP is payable at a rate of 90% of salary for the first 6 weeks of maternity leave, and thereafter at a flat rate (currently, £138.18).

However, if SPL is to be taken within the first six weeks of leave, it will only be payable at the flat rate of SMP – not 90% of salary. In practice, this will most likely mean that many women will not seek to curtail their maternity leave until after the first 6 weeks of leave.

Rebecca Berry
Solicitor