• The Government’s response to its consultation on the administration of shared parental leave and pay has been eagerly awaited by many.

    Despite some reports that the plans would be scrapped, the Government has now published its response to the consultation and outlined details of how the system will work.
    Shared parental leave will be introduced in April 2015. The framework for shared parental leave and flexible working is set out in the Children and Families Bill 2013, which is currently going through Parliament. In order to implement the new system by 2015, the Government is preparing the Regulations which it intends to publish in draft before the Bill receives Royal Assent.

    Background

    In February 2013 the Government invited views on how the system for shared parental leave and pay should operate. The consultation looked at how the new system will work and fit with current arrangements for maternity and paternity leave and adopters, as part of the Government’s commitment to support working families.

    Deputy Prime Minister Nick Clegg said: “It is already illegal to sack a woman because she is pregnant or on maternity leave, but we want to go further than that. We want to create a fairer society that gives parents the flexibility to choose how they share care for their child in the first year after birth.”

    It is proposed that the new leave system will allow eligible working families to have more choice about how they balance their work and family commitments. Under the proposals, parents can choose to be at home together or to work at different times and share the care of their child. It is hoped that businesses will benefit from having more published discussions about patterns of eave with their employees.

    Key points

    Under the new regime, it is proposed that:

    • A mother will retain the right to 52 weeks’ maternity leave but she will be able to choose to switch to shared parental leave in order to share the leave and pay with her partner after the first two weeks’ of birth.
    • The parent must provide to the employer a non-binding indication of their expected pattern of leave as part of the notification of their eligibility and intention to take shared parental leave.
    • The notice period for parents taking shared parental leave is at least eight weeks’ notice, inclusive of a two-week discussion period.
    • The Government originally stated that it did not intend to apply any limit on the number of notifications of leave or ‘change requests’ or to limit the frequency of such notifications by parents. However, it has now been confirmed that the number of notifications will be capped at 3 (the original notification and 2 further notifications or changes). Changes that are mutually agreed between the employer and employee will not fall within this cap. It is suggested that this will enable parents to use the leave flexibly but reduce the uncertainty an employer may experience from an unlimited number of notifications.
    • The cut off point for taking shared parental leave will be 52 weeks from birth (or adoption).
    • Notification periods will be aligned with paternity leave and pay at the end of the 15th week before the expected week of childbirth (or as soon as reasonable practicable where a pregnancy is not identified until a late stage).
    • Protection will be given to mothers who give binding notice to opt into shared parental leave prior to giving birth by introducing a right to revoke the notice up to six weeks after birth. This is to ensure that every mother is able to remain on maternity leave, if she chooses to, once she has given birth.
    • Parents will be required to provide the same mandatory information when opting into the shared parental leave system as is currently required when fathers take additional parental leave.
    • The right to return to the same job is maintained for employees returning from any period of leave that includes maternity, paternity, adoption and shared parental leave that totals 26 weeks or less in aggregate, even if the leave is taken in discontinuous blocks. Any subsequent leave will attract the right to return to the same job, or if it is not reasonably practicable a similar job.
    • A new provision is created for each parent to have up to 20 ‘keeping in touch’ days to use while on shared parental leave. As these will be in addition to the 10 keeping in touch days for maternity leave, they will be given a new name to differentiate them.

    Comment

    Following the introduction of additional paternity leave in April 2011, our experience has been that very few fathers have chosen to take advantage of the additional paternity leave available to them. It is questionable therefore whether these changes will in reality have a practical impact.

    A key consideration for many couples is that they will not be able to afford to take the time off. The Government’s own estimates suggest that just 1 in 20 fathers would be able to afford to take shared parental leave if it is paid at the current statutory rate of £137 per week. It appears, therefore, that shared parental leave may only be attractive to those who will benefit from enhanced contractual maternity/parental leave pay.

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