In 2014 the Government passed the Shared Parental Leave Regulations. Prior to 2014, parents had 2 very differing entitlements. The mother could enjoy up to 52 weeks maternity leave whilst the father had 2 weeks Paternity leave. The Shared Parental Leave legislation was designed to allow parents to share statutory leave, theoretically levelling the playing field. However a 2019 TUC study suggested only 1% of parents were actually using this entitlement. So what is Shared Parental leave and why are so few people using it?
How does Shared Parental leave work?
The premise behind Shared Parental Leave is simple. A mother can decide to waive her entitlement to up to 50 weeks of maternity leave and 37 weeks of Statutory Maternity Pay so that her partner can take the time off. Sounds simple? Well the devil is in the detail. Whilst this seems like a lovely way to share time with baby, it’s not a level playing field. Recent Employment Tribunal cases Ali v Capita and Hextall v Leicestershire Police have confirmed that it is lawful to enhance Maternity Pay but not Shared Parental Leave. So, you can pay mothers more than their partner. It is shared leave but not necessarily shared pay.
The mechanics of Shared Parental Leave
So how does this form of leave differ from others? The main difference is that there are 2 people involved and they might not necessarily work for the same employer. So there is a technical issue on proving entitlement. If the mother works for you then they will need to provide documentation such as the MATB1 form to prove that they are eligible for maternity leave. You will then know that they have terminated their maternity leave in order to transfer the rest of the leave to their partner. Why is this important? Because both parents cannot be off at the same time. Therefore you need some proof that the partner is indeed working and is eligible for Shared Parental Leave. The partner must have, in the 66 weeks before the EWC, worked for at least 26 weeks and earned on average at least £30 a week in any 13 weeks. You therefore need authorisation from the partner to write to their employer to get that proof. In these days of GDPR, consent is required before anything else can be done.
What happens when the mother works elsewhere?
If the mother does not work for you, other checks need to be performed. Practically this will be done by completing a form stating the following:
- the name of the employee
- the name of the partner
- the start and end dates of maternity/adoption leave (or pay if employee was not entitled to leave)
- the total amount of shared parental leave available
- the expected week of childbirth/placement (or the actual date of birth/placement if this has taken place)
- a non-binding indication of how the employee and their partner think they will split and take shared parental leave.
A copy of the birth (or adoption) certificate can be requested and checks can be performed with the mother’s employer. If the other employer isn’t playing ball in providing this evidence, this could put you in a tricky position. Get specialist advice before taking any action.
So, Shared Parental Leave has not only proven unpopular due to unaffordability issues but when it does get requested, it can be administratively burdensome. We certainly have a long way to go in the UK before we get leave as generous and comprehensive as the Scandinavians do…
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