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Wednesday 26 October 2016
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Shared parental leave is now upon us and it is important that the terms and conditions are understood

Just when practice managers are starting to feel they can stick their heads out of their offices again after all the year end brings, we suddenly need to shut the door again to get to grips with a new challenge – shared parental leave (SPL).

Not to be confused with parental leave, which allows employees to take time off work to look after a child, SPL allows parents of all kinds to share time off after the arrival of a baby. The regulations came into force on 1 December 2014 and apply where a baby is due on or after 5 April 2015 or where a baby is placed for adoption on or after that date.

The purpose of the new legislation is to allow parents access to a shared pool of leave. They can, therefore, decide to be off at the same time or take it in turns to have shorter periods of leave. Some practice managers may already be coming to grips with the new arrangements. The rest of us should now take the opportunity to prepare for new arrivals.

Who is eligible?
Every kind of parent is covered by the new legislation: mothers, fathers, partners and adopting parents. To be eligible, the mother (or adopter) must:

  • Be an employee.
  • Pass the continuity of employment test.
  • Share caring responsibility with the child’s father or their partner.
  • The other parent must:
  • Meet the employment and earnings test.
  • If eligible, a mother can choose to give notice that she will stop her maternity leave early and move to SPL with the child’s father (or her partner).

What do the tests consist of?
For the mother, the continuity of employment test is that they must have worked for the same employer for at least 26 weeks by the end of the 15th week before the week in which the child is due. They must also still be employed in the first week that is to be taken as SPL. The same terms apply for adopters, who substitute the week in which they are matched with a child.
For the individual with whom the mother is sharing parental leave, the employment and earnings test is that this person must have worked for at least 26 weeks in the 66 weeks leading up to the due date. They must have earned above the maternity allowance threshold in 13 of these 66 weeks.
If both the parents satisfy the relevant employment test, then they will be able to share parental leave and decide how the leave and pay will be split between them.

What are the arrangements relating to pay?
Similarly to maternity pay, the parent must have earned an average salary of at least £111.00 per week for the eight weeks prior to the 15th week before the expected due date or the adoption matching date in order to qualify for statutory shared parental pay. The rate of pay is currently £139.58 per week or 90% of average weekly earnings, whichever is lower. The other parent/partner must also meet the employment and earnings test.

A mother can choose to end maternity leave (and therefore eligibility for maternity pay or allowance) early and move to shared parental leave and pay.

Paternity leave and pay are still available as before, as long as the leave of one or two weeks is taken in a single block within 56 days of the baby’s birth. However, additional paternity leave disappears with the advent of the new legislation.

When can SPL be taken?
Parents may take this leave at any time during the 52-week period following the birth of the baby or the placement for adoption. The leave may start either after the mother has returned to work or if they have given notice (which is binding) that they will be reducing their maternity/adoption leave and moving to SPL.

Your staff member (whether the mother or the husband/partner) can give you up to three separate sets of notice that they wish to take SPL. This is because SPL can be taken in turns between parents.

The more complex factor for practices appears when you reach this stage of the process. Leave must be in whole weeks, not a few days at a time. But it can be taken as:

  • One continuous period (which you must accept).
  • A discontinuous period (which you can refuse).

What is a discontinuous period?
Discontinuous leave means taking the leave in blocks and coming back to work in between.

The employee should notify the practice that they plan to take SPL and that they wish to book leave. Three separate notices or requests for leave can be submitted, but more could be allowed by the employer. The notice to book SPL must be submitted at least eight weeks before the start of the leave period. It must be in writing with a date and must set out what is being requested. The notice may use the birth as a fixed point, so that it may say: “The leave will commence four weeks after the baby’s birth.”

What if the employee wants to vary or even cancel a period of discontinuous leave which was already agreed? A variation requires eight weeks’ notice and must be in writing. If all three allowable notices have already been used, then the employer does not have to agree to the variation or cancellation. If the employer makes a suggestion to vary the leave, this does not count as one of the employee’s three allowable notices.

Practices receiving requests, especially for discontinuous leave, will need to be prepared to negotiate. The employer is entitled to make suggestions based on business needs and it is evidently preferable to come to a mutual agreement. No pressure should be applied to vary a request for continuous leave.

What if, after discussion, there is no agreement on discontinuous leave? The leave reverts to being taken as a continuous block of leave. After this, the member of staff can decide to

take the single continuous block, withdraw the request, or put in another request. You should note the default provisions for discontinuous leave that apply in these circumstances. These are quite detailed and appear in the Advisory, Conciliation and Arbitration Service (ACAS) Guidance Booklet.

Requests for a single period of continuous leave must be accepted.

Possible outcomes

  • Accept the leave notification.
  • Agree a change to what was proposed (both parties should confirm what was agreed in writing within 14 days of the date of the request). This does not count as a new request and this should also be confirmed in writing as well.
  • Refuse a notification for discontinuous leave. You will need to write within 14 days of the notification with confirmation of the refusal, a proposed alternative and clarification based on the default positions of what options are now available.

You may simply not respond. If the request was for continuous leave, then the leave will go ahead automatically. No response to a request for discontinuous leave is taken as a refusal. Not responding is an option but even a negative response would be better practice.

Returning to work
If the employee’s combined leave period (maternity/paternity/adoption/SPL) was 26 weeks or less, then they are entitled to return to the same job. If the number of weeks was more than 26 weeks, then they are entitled to return to the same job or, if this is not reasonably practical, a suitable alternative on the same or better terms and conditions.
Annual leave is still accrued while on SPL.

What next?

  • Establish a SPL policy.
  • If you receive an SPL notification for discontinuous leave, take time to think about what might work in the practice. If the proposed leave is over a busy period, then what might be possible? What might you be unable to accommodate? What might be the consequences of this for the employee, if their childcare arrangements are dependent on the agreement of the practice as well as their husband/partner’s employers, and the practice is unable to agree their request(s)?
  • Have an informal meeting with the employee to discuss SPL and look at all the entitlements
  • Consider offering a right to be accompanied – this is both new and complicated.
  • Be prepared to discuss openly the options and be flexible.
  • Remember that continuous SPL can be taken as requested and cannot be refused.
  • Write to the employee to confirm that the request has been received, considered and the outcome.
  • Agree before the start of every leave period how and when you will keep in touch.

Please refer to the ACAS guide, Shared Parental Leave: a good practice guide for employers and employees:
This contains a variety of examples and more details of notice periods as well as a useful checklist. The ACAS web site also offers sample letters for most SPL circumstances.

Fiona Dalziel has been involved in primary healthcare management for 25 years.