Proposed Changes Due in 2015
The government has set out further details about its proposals for shared parental leave.
The proposed changes, which look set to be implemented in 2015, would allow a mother to convert her 52 weeks of maternity leave to ‘shared leave’ between herself and the father (save for the first two weeks which are reserved for the mother’s recovery).
The right will also be available to adoptive parents and also applicable to some agency workers.
At present, parents are already able to share some of the 52 weeks of leave, with individuals being able to take up to six months’ paternity/additional leave, but only after the baby is 20 weeks old.
To take advantage of the new system, a mother must give eight weeks’ notice to bring her maternity leave to an end. At this point there will be a procedural requirement for employees to provide a non-binding indication of their expected pattern of leave and how it will be divided between the two parents.
This notice to bring maternity leave to an end is binding and can be given at any stage (including before birth). The cut-off point for revoking a binding notice is six weeks after birth.
Patterns of Leave
Following notification, each parent will have a period of two weeks to discuss the requested pattern of leave with their employer. If however a position cannot be agreed, the default position will be to offer the employee a single block of leave starting on a date of the employee’s choosing.
Employees can change their minds about how much leave they will take, although they must give eight weeks’ notification of their intention to vary their pattern of leave.
In order to create greater certainty for employers, there will be a cap of three notifications to vary leave, however employers can permit further variations at their own discretion.
The total period of leave a couple can take cannot exceed 52 weeks and only nine months of that leave will qualify for statutory pay. All leave must also be taken before the child’s first birthday.
Right to Return
Parents who take shared parental leave will be entitled to return to the same job where they have been absent for 26 weeks in total, either as one block or in aggregate.
For parents who take more than 26 weeks’ leave, they will be allowed to return on the same basis as is presently the case for additional maternity/paternity/adoption leave.
It has also been announced that each parent will be allowed up to 20 ‘keeping in touch days’ during parental leave. This is in addition to the 10 days allowed during maternity/adoption leave.
To access the government's full response to the consultation, please click here.
The government has claimed that the proposals bring ‘good news for businesses’ and will ‘motivate a productive workforce’. However, there are concerns that the system will significantly increase the administrative burden for employers and will certainly take a period of adjustment.
“Further, it is possible that employers may see an increase in discrimination claims. If employers find it difficult to accommodate increasing requests for leave, there may be arguments raised that an employer’s refusal is due to the employee’s gender (or potentially any other protected characteristic). This may particularly be the case if, for example, the employee is male and a large number of female employees have historically been granted leave.
“There are still many question marks over how this system will work in practice and we wait with interest to see how the remaining detail will unfold. We will, of course, keep you updated with further information as the legislation progresses through parliament.”
Glenn Hayes - Partner