The Children and Families Act 2014 is now law and contains the new rules on shared parental leave. The new provisions will apply to babies born on or after 5th April 2015 so anyone getting pregnant from mid June 2014 may be able to take advantage of the facility to share up to 50 weeks of what used to be called maternity leave with the child’s Father. The first applications will start being made later this year.
Listed below are the main provisions of the new law:-
- Eligible couple’s (the mother should have 26 weeks continuous service when she reaches 15 weeks before the expected week of birth-her partner must have worked for 26 weeks in the 66 weeks prior to the birth of the child and earned at least maternity allowance threshold, currently £30 per week, in 13 of those weeks) will be able to take up to 50 weeks of shared parental leave (the mother has to take the first 2 weeks) which can be taken together or separately, and it can be taken in turns rather than the mother going back and then the father taking the rest of the leave. The first 39 weeks are paid as they are now.
- Notice given to end maternity leave and start shared leave is binding if given before the birth. However, the mother has 6 weeks after the birth to revoke this notice and remain on maternity leave instead- so it’s not really binding after all.
- Employees must give notice that they intend to take shared parental leave at least 15 weeks before the expected week of the birth.
- The notice period for a proposal of when the shared leave will be taken will be 8 weeks inclusive of a 2 week discussion period with the employer.
- No more than 3 periods of leave or changes to the date of periods of leave already agreed can be taken per employee although mutually agreed changes won’t count.
- The time limit for taking leave will be 52 weeks after the birth rather than from the start of maternity leave.
- In addition to the current 10 KIT days for women on maternity leave there will be an additional 20 KIT days per parent to use whilst on shared leave.
- The right to return to the same job will remain if returning within 26 weeks whether that 26 weeks is taken continuously or in discontinuous blocks.
- A new fostering-to-adopt status will be introduced and will use the current arrangements for pay and leave as apply to adoption leave and pay.
- There will no longer be a 26 week continuous service qualifying condition for taking adoption leave.
- Statutory maternity pay and statutory adoption pay will be the same i.e. the first 6 weeks at 90% of salary then 33 weeks on SMP/SAP.
- Surrogate parents will get the same pay and leave as adopters currently get where they apply for a parental order and will be able to attend 2 ante natal appointments.
- There will be unpaid time off work for the Father (or the Mothers partner if they are not the same person) to attend up to 2 ante natal appointments or paid time off for up to 5 adoption appointments for the primary adopter and 2 unpaid for the secondary adopter.
- Each qualifying parent will have to complete a form which both parents/carers will have to sign. Each will then submit the form to their employer showing the amount of leave and pay to which they are individually entitled.
- Employee will need to notify their employer of individual periods of leave they intend to take.
- Employers are not obliged to agree to the proposed leave pattern. The notice required is 8 weeks and 2 of those weeks are designated for consultation. If agreement cannot be reached the default position will be that the employee takes their share of the leave off in 1 continuous block.
- The employee can withdraw their request and submit a new one but can only do this 3 times.
The facility to take shared leave in turns could prove very disruptive in a small business. It will be difficult to take on someone to do a period of maternity cover when they will only be needed in blocks of a couple of months. It is therefore likely that smaller employers will refuse small blocks of leave in favour of the default position of 1 block.
Currently, maternity leave cannot be broken to take holiday or any other form of leave and if it is, the mat leave is deemed to have ended, however the provision to take leave in blocks, in turn with a partner, negates that argument and could open up the opportunity for those on Ordinary maternity leave to argue for a similar right to break it up.
With Mothers having 30 KIT days and Fathers/partners getting 20 this equates to 10 weeks when the employee can work and must be paid but may actually not be required if someone is covering the maternity leave already.
In effect, the right to return to the same job after 26 weeks leave in total will be extended to both parents if they share the leave equally.
The right to time off for both parents to attend ante natal classes or adoption meetings could prove disruptive.
We don’t know the details of the administrative arrangements yet but as the provisions within this Act become more wide ranging and extend rights to take leave to more people with the right to request flexible working being extended to everyone from 30th June 2014, I can only conclude that it will be more complex despite the Governments assertions that they want to keep it as simple and straightforward as the current arrangements. That probably says it all!