Ten myths about Shared Parental Leave and Pay

The regime for Shared Parental Leave and Pay begins for children expected or placed for adoption on or after 5 April 2015. How well do you think you know the details?

Whilst the broad concept of Shared Parental Leave (SPL) and Pay (ShPP) is manageable, it’s no easy task getting to grips with the details of the new regime. How well are you prepared for dealing with questions by your staff or, very soon, requests to take SPL and receive ShPP? We look at ten myths about the new regime, which comes into force for children expected or placed for adoption on or after 5 April this year. (Please note that in this article references to ‘mother’ are also to the adopter, and references to ‘father’ are also to the adopter’s partner, because in general the requirements are very similar.)

Don’t forget, we can help you with bespoke training for your HR staff, managers or whoever you choose, as well as an SPL policy, accompanying documentation, and reviewing and adapting your existing family friendly policies (all for a competitive fixed fee should you so wish). Please contact a member of the employment team for further information.

Myth 1: Shared Parental Leave and Pay has to be shared between two parents

Surprisingly, and despite its name, Shared Parental Leave (SPL) does not have to be shared between parents. Both parents or partners have to fulfil certain requirements in order for one of them, or both of them, to take SPL. However, a mother could return to work, while the father takes SPL entirely on his own. Or, it could be the mother who takes SPL on her own. Even though she is entitled to maternity leave, she might prefer to take advantage of discontinuous periods of leave under SPL, and return to work in between, which is not possible on maternity leave.

Myth 2: Neither parent can take SPL unless both parents are employees

Again, this is a common misconception. The parent who wants to take SPL must be an employee, but his or her partner does not need to be. Both parents must be ‘economically active’, meaning that where, for example, the father is self-employed, as long as he satisfies certain criteria, the mother will be able to take SPL even though the father cannot. Similarly, a mother may not qualify for SPL herself, but her self-employed status and earnings may allow a father, who is an employee, to take SPL.

Myth 3: SPL is available for parents of all babies born on or after 5 April 2015

Strictly speaking this is not true. As well as criteria such as length of service, eligibility is determined by when the baby is expected, not when the baby is born. Therefore parents of a child born in mid-March could be eligible to take SPL if that baby was expected, say, on 11 April. Conversely, parents of a baby who was born on 7 April would not be eligible for SPL if that baby had been expected on 1 April. Additional Paternity Leave would still be available in the second scenario, but not the first scenario.

Myth 4: A father who starts taking SPL can take paternity leave at a later date

No. It’s important that fathers are aware of this. Paternity Leave – Ordinary Paternity Leave – has to be taken first, if it’s taken at all. This is the two weeks that may be taken within 56 days of the child’s birth. A father who goes straight into SPL will lose his entitlement to Ordinary Paternity Leave. As referred to above, Additional Paternity Leave is abolished entirely for parents of children expected or placed for adoption on or after 5 April 2014.

Myth 5: A mother who opts out of maternity leave to take SPL, and simply changes her mind, can revert to taking maternity leave if she wants to

Although SPL is very flexible, this is not true, because in general once a mother has opted out of maternity leave (by curtailing it or returning to work), she cannot just choose to opt back in. She will have to remain on SPL. There are three possible exceptions to this: firstly, where she has curtailed her maternity leave before the baby was born, and changes her mind within 6 weeks of the child’s birth; secondly if she realises that neither parent was in fact eligible for SPL or ShPP; and thirdly if the other parent dies.

Myth 6: If an employer refuses, SPL cannot be taken in discontinuous periods

Unfortunately this is not strictly true. An employer can refuse an employee’s request to take discontinuous periods of leave (e.g. 1 month’s SPL, followed by 1 month’s work, followed by another month’s SPL), in which case the leave requested (here 2 months) will be converted into one continuous period of leave. However, if the employee really wants to achieve discontinuous periods, all he or she has to do is submit up to 3 separate Period of Leave notices, each of one continuous shorter block. So, in this example, the employee would submit one notice asking for one month. Because it is a continuous block the employer cannot refuse. Then the employee would submit a second notice, asking for another block of one month, which, again, the employer cannot refuse. The only consolation for the employer is that there cannot be more than 3 such notices, so 3 periods of discontinuous leave is the maximum. Although this seems like a loophole, we understand that this result was intentional.

Myth 7: No curtailment notice is needed if a mother has already returned to work

Whilst it can be the case that if the mother has already returned to work, she does not need to serve a notice to end (curtail) her maternity leave to enable her or her partner to take SPL, the same is not true with regard to ShPP. Even if a woman has returned to work, she will still need to serve a notice to end (curtail) her maternity pay. Without this being done at the right time, and with the other relevant notices, neither she nor the other parent will be entitled to ShPP.

Myth 8: Employers will need to verify an employee’s entitlement to SPL, including checking details with the other parent’s employer

There is no specific obligation on employers to verify entitlement to SPL. It is expected that employers will check the employee satisfies the continuity of employment test (26 weeks) and the 8 weeks average weekly earnings test. Employers also need to keep certain records, including the evidence the employee has provided, and other information about the ShPP they have paid and reclaimed. Other than this, employers are entitled to rely on the information they are given. They are not required to check or confirm information given by the employee’s partner (although they can contact the partner’s employer if they want to). HMRC is responsible for identifying those who have overclaimed or defrauded the system, although this could also be grounds for disciplinary action by the employer.

Myth 9: Only mothers on maternity leave are entitled to be offered another job, if there is a vacancy, in a redundancy situation

No. The right to be offered a suitable alternative job, perhaps best known in the context of maternity leave, applies to parents taking adoption, paternity and shared parental leave as well. With more types of leave now protected, it becomes more likely that an employer with only one alternative job available will have to choose between two employees, both of whom have this special legal protection in a redundancy situation. Incidentally, a recent case on this subject confirmed that the right to be offered the alternative role arises as soon as the employee’s role becomes redundant. The employer is not permitted to first fill new roles created in a restructuring process and then offer any leftover vacancies to an employee on maternity or other family leave. This would clearly circumvent the special protection.

Myth 10: If an employee is no longer employed, the employer’s liability to pay ShPP ends

This is one example of where the requirements for SPL and ShPP are slightly different. An employee has to be employed up until the week before any period of SPL to remain entitled to it, but for ShPP, the employee only has to be employed up until the week before the first period of SPL notified. Many commentators have got this wrong, assuming that the requirements for SPL and ShPP are exactly the same. (The position does change, however, if the parent starts working for another employer). Note that there are additional provisions regulating dismissals by an employer solely or mainly to avoid paying ShPP, even where the employee is dismissed before this date.

For further help navigating this complex new regime, please contact a member of the employment team and see our previous articles on Shared Parental Leave.