Gareth McCay from McCay solicitors takes a look at the new statutory shared paternity leave and pay legislation.
The Work and Families Act (Northern Ireland) 2015 will come into effect in early April 2015. The new legislation will entitle eligible mothers of babies born on or after 5 April 2015 to volunteer to end their maternity leave and/or pay early to create leave and pay which they can then share with the child’s father or their partner as Statutory Shared Parental Leave (“SSPL”) and Statutory Shared Parental Pay (“SSPP”).
Current rights to leave for parents
Currently, statutory parental rights are broadly made up of maternity rights, paternity rights, adoptions rights and unpaid parental leave. Additional Paternity Leave and Pay was extended in 2011 to allow a father or other eligible employee to take up to 26 weeks leave if a mother returned to work early from maternity leave. Employees are not obliged to take SSPL and existing rules on Maternity and Ordinary Paternity Leave will remain the same but Additional Paternity Leave and Pay will now be abolished.
Statutory Shared Parental Leave and Pay: how it works
SSPL is designed to enable working parents to share leave and to take time off in a more flexible way in the first year of a child’s life. An employee must share the main responsibility for the care of the child that the SSPL and SSPP relates to with the other parent (i.e. their partner or child’s father) at the date of the child’s birth.
SSPL may be taken in a single continuous block or it may be taken in smaller blocks of leave (a minimum of a week at a time), interspersed with time at work. This is an obvious change from maternity leave which must be taken in one continuous block. If both parents meet eligibility requirements, SSPL can be shared between the parents who can alternate periods of work and leave or be at home together if they so wish.
An employee can only give 3 notices to take SSPL, unless the employer agrees to more. There are no restrictions on the number of notices for SSPP but it is likely that it will be notified at the same time as SSPL.
As with statutory maternity, paternity and adoption leave, an employee taking SSPL will be entitled to the benefit of the terms and conditions of their employment with the exception of remuneration. In addition the regulations provide for 20 keeping in touch days, additional redundancy protections, the right to return to work and protection from dismissal or detrimental treatment.
Eligibility Criteria for Statutory Shared Parental Leave
To qualify for SSPL an employee must have been continuously employed by the employer for 26 weeks up to and including the 15thweek before the week in which their baby is to be born.
The other parent must meet an “Employment and Earnings” test whereby, the other parent must have been employed or a self-employed earner in Northern Ireland for a total of 26 weeks in the period of 66 weeks leading up to the week in which the child is due and earned an average of £30 a week in 13 of those weeks.
It will be the employee’s responsibility to check that they are eligible for SSPL and/or SSPP and they must give the employer a written declaration confirming their eligibility. They will also need to provide a declaration from their partner that he or she meets the “Employment and Earnings” test and that the employee consents to their partner taking SSPL and/or SSPP. The employer may also ask for a copy of the child’s birth certificate.
The employer is not required to check or confirm the information given by their employee’s partner to determine whether their employee is eligible for SSPL and/or SSPP. The employer is entitled to ask the employee for details of their partner’s employer and the employee is required to provide it however the employer is not required to speak to the employee’s partner or the partner’s employer.
Eligibility for Statutory Shared Parental Pay
In order to qualify for SSPP, an employee must:
- Meet the qualifying requirements for SSPL and have a partner who meets the Employment and Earnings test, and
- Have earned not less than the lower earnings limit (currently £110 per week) in the relevant period. This is usually the 8 weeks leading up to the qualifying week.
So an employee who currently meets the test for Statutory Maternity Pay and has a partner who meets the test for Statutory Paternity Pay will be eligible for SSPP.
Ending Maternity Leave and Pay to create Statutory Shared Parental Leave and Pay
SSPL is created by a mother reducing her maternity leave by ending it early. Or if the mother is not entitled to Statutory Maternity Leave but is entitled to Statutory Maternity Pay or Maternity Allowance, she can end that to create SSPL for her partner. SSPP is created by a mother ending her Maternity Pay or Maternity Allowance.
A mother must take at least 2 weeks of Statutory Maternity Leave and Pay after the birth of her child before maternity leave can be curtailed. The maximum amount of SSPL that can be created therefore is 50 weeks and the maximum amount of SSPP is 37 weeks.
An eligible mother who wants to take SSPL, or who wants to enable her eligible partner to take SSPL, will be able to end her maternity leave by returning to work before the end of her maternity leave or by giving notice to her employer to end her maternity leave on a specified future date.
Knowing whether an employee qualifies for Statutory Shared Parental Leave and Pay
An employee is required to let an employer know that he or she qualifies for SSPL and SSPP and give the employer 8 weeks’ notice if they intend to take it. The notice of entitlement will include:
- The start and end dates of the mother’s maternity leave, maternity pay or allowance;
- How many weeks of SSPL and SSPP is available to the employee and their partner;
- How much SSPL and SSPP each parent intends to take;
- A declaration from the employee’s partner stating that he or she meets the employment and earnings test. This declaration will also state that the mother gives her consent to her partner taking SSPL and/or SSPP; and
- A non-binding indication of how the employee will take the SSPL that is available to him or her.
Curtailing maternity pay or maternity allowance before returning to work
Where a mother is entitled to Statutory Maternity Pay she can give 8 weeks’ notice to end her maternity pay or maternity allowance to give rise to entitlement to SSPP before returning to work, if eligible, either she or her partner or both can take SSPP.
Where a mother is not entitled to maternity leave but it entitled to Statutory Maternity Pay or maternity allowance, they may curtail their pay or allowance to create a right to SSPL for their partner if they meet the qualifying conditions for leave.
Curtailing maternity pay or allowance after having returned to work
Whilst returning to work will automatically end a mother’s entitlement to maternity leave, it does not end their maternity pay or allowance period. The Statutory Maternity Pay period will continue to run in the background for 39 weeks from when it was started.
If the mother wants to opt into SSPP after returning to work and she is still within the 39 week maternity pay period, then she must give her employer a notice to end her maternity pay period at least 9 weeks before the expiry of the 39 week period.
How much Statutory Shared Parental Leave and Pay can be taken?
How much SSPL and SSPP an employee may take depends on when the mother curtails her maternity leave and pay. The other parent’s use of Statutory Paternity Leave and Pay has no effect on SSPL and SSPP and is entirely separate. SSPL is whatever remains of the mother’s 52 weeks of entitlement after returning to work or the date of the notice to curtail maternity leave and pay or maternity allowance. The untaken balance if on maternity pay can be taken in SSPP.
Where both parents are entitled to SSPL, they can transfer the leave between them at a later date but only with the consent of both parents. An employee must notify an employer of any change in the number of weeks of SSPL allocated to him or her as a result of transferring leave to or from their partner.
Neither parent can take SSPL unless the other parent has signed a declaration giving their consent to the division of leave as set out in the notice of entitlement and intention to take SSPL.
Revoking notice to curtail Statutory Maternity Leave
If an employee has given notice to curtail their maternity leave, she may only revoke the notice if she has not returned to work. A revocation must be in writing and will only be valid if one of the following circumstances apply:
- Where it is discovered in the 8 weeks following the notice that neither the mother nor the partner has any entitlement to SSPL or SSPP.
- In the event of the death of the partner.
- If the notice was given before the birth and the mother revoked her maternity leave curtailment notice within 6 weeks following the birth.
A mother who revokes her maternity leave curtailment notice within 6 weeks of the birth will have her maternity leave entitlement restored to 52 weeks and will then be able to opt into SSPL at a later date either by returning to work and giving notice of entitlement to SSPL to her employer or by giving another notice to curtail her maternity leave.
Arrangement for “booking” Statutory Shared Parental Leave and Pay
Once an employee has notified the employer of their entitlement to take SSPL, he or she will also have to submit a notice to “book” a period of leave. A notice to book leave must be given at least 8 weeks before leave can be taken. In many cases, a booking notice will be submitted at the same time as a notice of entitlement is submitted.
Each of the notifications to book leave may notify a single, continuous block of leave or may request discontinuous periods of leave. If an employee is asking to take a single block of leave in their booking notice the employer cannot refuse the request.
An employee may request a pattern of discontinuous leave however an employer does not have to agree to this pattern. There will be a 2 week discussion period, starting on the date that the employee gives the employer the booking notice, for the employer and employee to discuss the period of leave that has been requested and propose alternatives. An employer cannot prevent an employee from taking the amount of leave requested in the notice, but an employer can change how and when it is taken. If the employer refuses the pattern proposed and does not agree any other pattern with the employee, the weeks of leave in the notice may be taken in a single continuous block starting on a date preferred by the employee. The employee has 5 days after the end of the 2 week discussion period in which to specify the date that they will start their leave.
If an employee has given notice to book discontinuous weeks of leave, an employee can withdraw his or her booking notice within the following 2 weeks, unless the employer agreed the pattern in the notice or the employer has already reached an agreement with the employee in that period. An employee can notify an employer separately about pay and the same 8 weeks’ notice applies
Employees who change their shared parental plan
Leave arrangements that have been notified can be rearranged by mean of a notice to vary the agreed leave again, 8 weeks’ notice must be given. An employee can give notice to end a period of leave earlier or later than previously notified or to aggregate a number of discontinuous weeks into a single block using a variation notice. A notice to vary agreed leave will count towards the cap of 3 notifications to book leave.
Employers will need to review and update the family friendly policies in their staff handbook and train relevant staff in the new procedure.
McCay Solicitors are Employment Law specialists, should you wish to speak to McCay Solicitors regarding this article or any other legal matter please contact by telephone on 02871371705, email gareth@mccaysolicitors.co.uk or visit our website at www.mccaysolicitors.co.uk
This article does not constitute legal advice and McCay Solicitors accept no liability for its content.