Your rights to Shared Parental Leave

How does shared parental leave work?

Employees who are parents (whether by birth or adoption) are currently entitled to take shared parental leave (SPL) in the first year of their child’s life or in the first year after their child’s placement for adoption. Parents are not be obliged to take SPL and it is optional. Where the mother is an employee she may choose to end her statutory maternity leave so that she can take SPL, provided the other parent is (or has recently been) in paid work. If the other parent is an employee with qualifying service he may also take SPL. The parents can decide how they allocate the leave entitlement between them.

Where the mother is not an employee but is entitled to statutory maternity pay (SMP) or maternity allowance (MA), she will not be entitled to SPL but the other parent may be entitled if they are an employee with qualifying service, and the mother ends her SMP or MA period early. Employee’s exercising their right to SPL can share up to 50 weeks of leave and up to 37 weeks of pay between them.

Is shared parental leave a statutory right?

Yes – subject to certain eligibility criteria. Shared parental leave is available to employees who are:

• having a baby
• using a surrogate to have a baby
• adopting a child
• fostering a child who you’re planning to adopt

It is also subject to certain eligibility criteria – such as pay criteria.

Do you get paid for parental leave?

Statutory Maternity Pay (SMP) is paid for up to 39 weeks. Employee’s receive:

• 90% of average weekly earnings (before tax) for the first six weeks
• £156.66 or 90% of average weekly earnings (whichever is lower) for the next 33 weeks

The statutory weekly rate of Paternity Pay is £184.03, or 90% of average weekly earnings (whichever is lower).

Some employers will offer more generous parental leave schemes and pay in excess of the statutory minimum.

When can a father take parental leave?

A father is entitled to two weeks paternity leave.  The leave must be taken in one go. Leave cannot start before the birth. It must end within 56 days of the birth (or due date if the baby is early). Fathers are entitled to take either one whole week or two consecutive weeks’ paternity leave within 56 days of a child’s birth or placement for adoption. Since April 2015, this includes the birth of a child to a surrogate mother where the employee (and their partner) expects to obtain a parental order.

Can grandparents get paternity leave?

Grandparents have no statutory entitlement to take either paternity leave or adoption leave. The government had considered introducing shared parental leave for grandparents when grandchildren were born, but this has not been taken any further or formalised. There has been reports of some employers introducing grandparent leave, however, this is not a statutory right.

Flexible working

Employees can make a request for flexible working from day one of employment under the statutory scheme for any reason. An employee triggers the procedure by making a written request. The employer then has a two-month decision period within which to consider the request, discuss it with the employee and notify the employee of the outcome.  The employer must deal with the application in a reasonable manner. The employer can only refuse a request for one (or more) of the eight reasons set out in the legislation. An employee can complain to an employment tribunal for a variety of reasons regarding the employer’s response to their flexible working request, including failure to deal with the request in a reasonable manner or within the two-month period.

Only an employee can make a flexible working request and only two requests can be made in any 12 month period. The change requested could be in relation to:

• the hours they work
• the times when they are required to work
• the place of work (as between their home and any of the employer’s workplaces).

The application must be in writing and state that it is an application under the formal procedure. It must also state the change being requested.  There is a stipulation on employers and employees to enter into consultation about the request, with the onus falling on the employer to treat this reasonably. The employer must then deal with the request reasonably.

Broadly, that means dealing with the request within the decision period, relying on one of the eight grounds for refusing a request, discussing the request with the employee, providing an outcome and allowing the employee the right of appeal. Most employers have flexible working policies which will set out the requirements for making a request and the process the employer will follow upon receipt of a request.

If the employer fails to deal with the request appropriately or fairly, then an employee may have a means of redress under the statutory scheme or, alternatively, a discrimination claim related to the refusal of the request.

Andrew Willshire is an employment law expert at Paris Smith solicitors.

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