ACAS Shared Parental Leave (Employer Guide)

Eligible employees are entitled to take time off work as shared parental leave (SPL).

As an employer you will need to understand the statutory rights and responsibilities of your employees in relation to SPL and what this means for your business in practice when handling a request for SPL.

Further, in accordance with best practice, any workplace policy that you adopt in relation to SPL should ideally be set down in writing, either by way of hard copy or to be made easily accessible to all employees.

What employers need to know about shared parental leave

Shared parental leave (SPL) refers to the right of working parents to share the mother’s statutory entitlement to maternity leave. Similarly, the mother can also elect to share her right to statutory maternity pay through what’s known as shared parental pay (ShPP).

Where eligible for SPL and ShPP, the mother will first need to take the compulsory two weeks of maternity leave following the birth, or four weeks leave where she works in a factory.

Thereafter, she is free to return to work and curtail her own entitlement to maternity leave and pay. As such, working parents are jointly entitled to a maximum of 50 weeks of leave, and up to a maximum of 37 weeks of pay.

Eligibility criteria for SPL

To be eligible for SPL, together with ShPP, both the mother and her partner will need to satisfy the following criteria:

Share primary responsibility for the child. Please note, as a birth parent, you will not be eligible for SPL if you started to share responsibility for the child after the birth.

Meet the relevant work and pay requirements, depending on which parent, or whether both parents, want to use the shared parental leave and pay (see below).

Where parents want to share SPL

In the event that both parents want to share the SPL and ShPP, they must meet the following work and pay requirements:

• Have been employed continuously by the same employer for at least 26 weeks by the end of the 15th week before the due date or, as an adoptive parent, by the end of the week they were matched with the child
• Remain employed by the same employer throughout the SPL
• Be ‘employees’ not ‘workers’
• Earn individuall at least £118 per week, as an average

In the event that either parent is classed as a worker rather than an employee, they may be precluded from sharing their SPL but should still be entitled to share their ShPP. On the other hand, where either parent earns less than £118 per week, they can share their SPL but not the ShPP.

Where only one of the parents wants to take the SPL

The rules differ here for birth and adoptive parents. For birth parents, where the mother’s partner wants to take the SPL and ShPP, the mother must satisfy the following requirements:

• Worked for at least 26 weeks, albeit not necessarily consecutively, during the 66 weeks immediatly prior to the week the baby’s due date
• Earned as a minimum a total of £390 across any 13 of the qualifying 66 weeks

The mother’s partner must also meet the following:

• Continuous employment with the same employer for a minimum of 26 weeks by the end of the 15th week prior to the baby’s due date
• Remain with the same employer for the duration of their SPL
• Qualify as an employee, rather than a worker
• Earn a minimum of £118 a week on average

If, on the other hand, the mother wants to take the SPL and ShPP, the mother’s partner must satisfy the following requirements:

• During the 66 weeks immediatly prior to the week the babgt is due, they must have been working for at least 26 weeks
• Have earned at least £390 in total across any 13 of the 66 week period

The mother must also show she meets the following:

• Continuous employment with the same employer for a minimum of period of 26 weeks by the end of the 15th week before the baby’s due date
• Remain with the same employer during SPL
• Qualify as an ‘employee’ not a ‘worker’
• Earn a minimum of £118 per week, on average

In the case of adoptive parents, where only one of them wants to take the statutory entitlements, the parent who wants to take the leave and pay must satisfy the following requirements:

• Have been employed continuously by the same employer for at least 26 weeks by the end of the week they were matched with the child
• Remain with the same employer while they take SPL
• Be an ‘employee’ not a ‘worker’
• Earn on average at least £118 each a week

The other parent must also:

• Have been working for at least 26 weeks during the 66 weeks before the week the child was placed with them
• Have earned at least £390 in total in 13 of the 66 weeks

Again, as in the case where both parents want to share the SLP and ShPP, slightly different rules apply where one of the parents is classed as a worker or earns less than £118 per week.

What to include in a shared parental leave policy

In addition to setting out the eligibility criteria as above, any shared parental leave policy will also need to explain, as an absolute minimum, the following:

• The benefits to which an employee is entitled
  How an employee can apply for SPL and ShPP

Employee entitlements under shared parental leave

Where an employee is eligible for shared parental leave, this does not need to be taken in one single tranche, but rather can be used in blocks with periods back at work in-between. That said, any SPL must be shared within the first year after the child is born or, in the case of adoption, after the child is placed with the parents.

Shared parental pay will need to be paid at a rate of £148.68 a week, or 90% of an employee’s average weekly earnings, whichever is lower. This is the same rate as statutory maternity pay (SMP), save except that during the first 6 weeks SMP is paid at 90% of whatever an employee earns, without any maximum.

How an employee can apply for SPL and ShPP

To apply for SPL and ShPP the employee must provide you with at least 8 weeks’ written notice of their leave dates using the appropriate forms. These can be downloaded online. Their partner will need to make a separate application to their own employer so as to benefit.

For shared parental leave to start the mother must either return to work, which ends any maternity leave, or give you what’s known as binding notice of the date on which she plans to end her leave. Similarly, the mother will need to give you notice of the date when she plans to end any maternity pay.

An employee is permitted to change their mind as to how much SPL and/or ShPP they plan to take, in addition to when they want to take it, although they must provide you with notice of any changes at least 8 weeks before the start of any shared parental leave.

As the employer, you are entitled to ask for further information within 14 days of an employee applying for shared parental leave, including, for example, a copy of the birth certificate. This will need to be provided by your employee within 14 days of it being requested.

Need assistance?

When dealing with workforce issues, it is important to consider the full legal risks and rights of your workers. DavidsonMorris’ employment lawyers are on hand to help you assess the circumstances and understand the options that are in your best interests, not least to avoid unwanted tribunal claims and damage to reputation.

As employment law specialists, we can assist if you have any queries relating to employee entitlements, both contractual and statutory. Working closely with our professional HR consultants, we are able to provide a holistic view of personnel management solutions. Speak to our experts today for advice.

Share parental leave FAQs

Last updated: 12 April 2020

Author

Anne Morris

Founder and Managing Director Anne Morris is a fully qualified solicitor and trusted adviser to large corporates through to SMEs, providing strategic immigration and global mobility advice to support employers with UK operations to meet their workforce needs through corporate immigration.

She is a recognised by Legal 500and Chambers as a legal expert and delivers Board-level advice on business migration and compliance risk management as well as overseeing the firm’s development of new client propositions and delivery of cost and time efficient processing of applications.

Anne is an active public speaker, immigration commentator, and immigration policy contributor and regularly hosts training sessions for employers and HR professionals

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