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Explained: shared parental leave

Lawyer Simon Bevan explains how shared parental leave and changes to other family-related leave may affect schools

Posted by Dave Higgitt | November 25, 2014 | School life

A number of family-related rights will change this academic year and these will impact on schools, their practices and their policies. This article examines these changes and how the changes may be implemented. 

Shared parental leave

New regulations which implement a coalition agreement to introduce shared parental leave (SPL) will come into force on 1 December. 

What is SPL?

SPL is a new entitlement for staff who become parents to be taken in the first year of their child’s life or in the first year after their child’s placement for adoption. This is a significant development to the statutory leave entitlements which employees in schools will be able to enjoy for children with an expected week of childbirth on or after 5 April 2015 or who are placed for adoption on or after that date. Unless parents opt in to the new SPL regime, the current maternity and adoption leave regimes remain the default position.

Under the new SPL regime, eligible staff will be entitled to a maximum of 52 weeks' leave and 39 weeks' statutory pay upon the birth or adoption of a child. Simply put, the former maternity leave and pay rights will be capable of being "shared" between parents under SPL.

The existing requirement for the new mother to take compulsory maternity leave (two weeks in most cases) will remain. SPL will then be available on the balance of the mother's untaken maternity leave (50 weeks in most cases). It will be possible for a partner to take SPL at the same time as the mother is taking compulsory maternity leave.

SPL includes very complex notice requirements for employees to include a curtailment notice, a notice of entitlement and intention to take SPL or a declaration that their partner has served such a notice. Where notification obligations are met, SPL may be taken concurrently between parents or consecutively in blocks of one week. There is also scope for the leave to be taken intermittently, with multiple short periods of leave, so long as the total amount of leave does not exceed 52 weeks between the parents. The key to success in managing the SPL scheme will be early discussions with staff to know and understand their plans and to establish how, and if, they may be accommodated.

The introduction of SPL will result in additional paternity leave and pay, which was generally not taken up by new fathers, being abolished. Being able to take two weeks’ ordinary paternity leave and to potentially share in the 52-week entitlement to SPL provides potential compensation for this change.

Each parent taking SPL will be entitled to 20 KIT-style days, called SPLIT days, in addition to the mother's 10 KIT day entitlement during maternity leave.

An employee returning to work from SPL will have the right to return to the same job regardless of how many periods of SPL they have taken, provided that they have taken 26 or fewer weeks' leave (which includes periods of maternity, adoption, paternity and SPL) in total. After 26 weeks' leave, they only have the right to return to the same or a similar job. 

What about pay?

Shared parental pay is available, subject to eligibility, for a maximum of 39 weeks. Statutory shared parental pay is payable at the same rates as statutory maternity pay.

To be eligible for SPL and benefit from the pay, parents must satisfy a two-stage test. Both the mother and her partner must fulfil what is called an ‘Economic Activity’ test so they must both have: 

• worked for any 26 out of the 66 weeks preceding the child's birth and
• earned at least £30 gross salary per working week for any 13 of those 66 weeks.
• The individual who proposes to take SPL must also satisfy the following service requirement:
• 26 weeks' continuous service with the same employer at the 15th week before the child's due date and
• still be working for the same employer when they intend to take the leave. 

Schools will need to consider whether they offer enhanced parental leave pay. Schools may face discrimination or constructive dismissal claims. Schools should seek early advice as to the correct approach. 

Changes to adoption leave

In addition to the introduction of SPL, amendments are being made to adoption leave rights. From 5 April 2015: 

• the current requirement for 26 weeks' service before becoming entitled to adoption leave will be removed
• employees will not be able to take paternity leave if they have exercised a right to take paid time off to attend an adoption appointment in respect of that child and
• employees will be protected against suffering a detriment or being dismissed in relation to time off for adoption appointments. 

Changes to the right to time off for antenatal appointments

All pregnant employees have a statutory right to paid time off during working hours “for the purpose of receiving antenatal care”, irrespective of hours worked or length of service.

From 1 October 2014, the right to attend such appointments was extended so that qualifying employees and workers are now entitled to accompany a pregnant woman to an antenatal appointment. 

What should schools do now?

The introduction of SPL is a significant development to the statutory leave entitlements which employees in schools will enjoy for children with an expected week of childbirth or who are placed for adoption on or after 5 April 2015.

Schools should now ensure that their family-related leave policies and procedures are up to date and that they are ready to address any SPL requests. Senior managers will need appropriate training so that they understand the requests for leave that they may receive.

In particular, it will be necessary to introduce a new SPL policy, which works alongside the school's maternity and adoption policies. The SPL policy should detail the new entitlement and procedure for requesting SPL. New forms will also need to be provided.

There will be a period of overlap between the existing right to additional paternity pay and leave and the new SPL and pay entitlement. Transitional arrangements mean that schools should amend their paternity policy to provide for an expected week of childbirth before 5 April and those on or after 5 April 2015. 

Simon Bevan is a partner at leading education law firm Veale Wasbrough Vizards. T: 0117 314 5238 E: sbevan@vwv.co.uk W: www.vwv.co.uk Please contact Simon for more information or to discuss introducing a new SPL policy.

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