Shared Parental Leave
If the parents discover neither of them is entitled to either shared parental leave or pay in the 8 weeks following the mother/primary adopter giving a curtailment notice to her employer, then they may revoke the curtailment notice and remain on maternity/adoption leave.
If the parents decide that a different division of the total shared parental leave available would suit them better, they can alter the division of the leave between them if they both agree. They are each required to give a variation notice to their employer, setting out the new amounts of leave accruing to each parent, and signed by both parents.
Employees are required to give you 8 weeks’ notice of any period of shared parental leave. In many cases, the first period of leave will be notified at the same time as they notify you that they are entitled to take shared parental leave. However, a notice to book shared parental leave may be given at another time.
An employee who has notified you of their entitlement to shared parental leave must also give notice to “book” leave at least 8 weeks before the first week of leave is due to start. In many cases, an employee is likely to give you a booking notice at the same time that he or she gives the notice of entitlement.
A booking notice must specify the weeks of shared parental leave that an employee proposes to take. It must state a minimum of 1 week and may specify more weeks in a single continuous block, or discontinuous blocks of leave.
Where a booking notice notifies a single continuous block of leave, the employee has a right to take that leave on the dates notified. If a notice requests leave in discontinuous weeks, you are entitled to require all the weeks of leave to be taken in a single block. So, if an employee gives a booking notice to take 12 weeks of shared parental leave not in a single block, but, for example, in a discontinuous pattern taking every other week off for the next 24 weeks, they have the right to 12 weeks leave, but he or she does not have the right to the pattern of leave proposed in the booking notice. An employee can only take a pattern of discontinuous leave if you agree to that pattern of leave.
An employee can only take a pattern of discontinuous leave if you agree to that pattern of leave.
You may, for example, think that it is better to have the employee at work one week in a fortnight than to lose them for a solid 3 month block. On the other hand, you may prefer, and can suggest, a different pattern of discontinuous leave, for example, 2 weeks absence on shared parental leave and then 2 weeks back at work over an agreed period. Or you may simply refuse the discontinuous pattern of leave proposed by the employee and require them to take the leave in a single continuous block.
An employee is not entitled to withdraw a notice for a single continuous block of leave, but may do so if you agree to the withdrawal.
An employee may withdraw their notice to ‘book’ discontinuous leave within 15 days of giving it, providing that they have not already reached an agreement with you about when they will be absent from work.
Once the 15th day has passed, any change to the period of leave booked must be done by a variation notice. This is subject to 8 weeks’ notice and counts towards the cap of 3 booking notifications.
If a notice is withdrawn it does not count towards the cap of 3 booking notifications.
In the majority of cases, yes. However, the 8 weeks’ notice to book leave is not observed in the following circumstances:
- In the case of the father/partner, where the mother/primary adopter dies;
- In the case of the mother/primary adopter, where the father/partner dies; or
- Where the baby is born more than 8 weeks early.
If an eligible employee has submitted a booking notice for a single block of leave, this cannot be refused. It is necessary to acknowledge receipt of the notice and the dates of leave booked.
An employee has 2 weeks to withdraw the notice and they don’t have to give a reason if they do withdraw. If the employee wants to vary the dates given in the notice, then he or she will have to submit a notice to vary the leave, giving at least 8 weeks’ notice of any change.
If the employee has submitted a notice containing a pattern of discontinuous leave, the line manager can do one of the following:
- Agree the pattern of leave proposed by the employee;
- Propose an alternative pattern of leave that must be agreed by the employee;
- Refuse a pattern of leave and require the leave to be taken in a single block;
There is a 2 week period for discussion following the date of submission of the booking notice. The employee may withdraw the notice at any time up to and including the 15th day after submission of the notice.
If no agreement can be reached between you and the employee on the pattern of leave the employee requests to take within the 2 week discussion period, or if you do not respond to a notice proposing a pattern of leave and the employee does not withdraw the notice, the employee is required to take the leave in a single continuous block. The employee has 5 days following the end of the discussion period to specify the date on which he or she will start the continuous period of leave of the number of weeks set out in the booking notice. The leave cannot start within 8 weeks of the date that the booking notice was submitted.
If the employee does not specify the start date within 5 days of the end of the two-week discussion period, then the continuous block of leave must start on the first date of the first week of leave specified in the booking notice. If the employee wants to change this, he or she must submit a notice of variation, subject to 8 weeks’ notice.
There is a statutory cap of 3 notices to book shared parental leave.
The following booking notices count towards the cap of 3:
- A notice to book continuous or discontinuous periods of leave that is not withdrawn on or before the 15th day following submission
- A notice to vary a previously notified (or varied) period of leave
A request by you to an employee to vary a period of agreed leave does not count towards the employee’s maximum number of notices.
We recognise that, for some parents, patterns of leave will only work if both parents’ and line managers agree to the patterns of leave that their respective employees have proposed. If one employer says that the leave must be taken in a single block, this may not work for the family.
We encourage a 2 weeks discussion period. An employee can withdraw a booking notice at the end of the 2 weeks period (on the 15th day) without penalty. A booking notice withdrawn by the 15th day following submission does not count towards the cap of 3 notifications. The purpose of allowing the booking notice to be withdrawn is precisely to take into account the fact that both parents are trying to agree patterns of leave with their employer.
An early discussion between you and the employee, held shortly after an employee gives a notice of entitlement to shared parental leave with a non-binding indication of when the leave will be taken, is likely to reduce the likelihood of withdrawn notices as both you and the employee will have a clearer understanding of the other’s needs.
Yes, provided that they don’t exceed the cap of 3 notifications. Employees are able to make 3 notifications or changes to agreed periods or patterns of shared parental leave. The process for giving a variation notice changing leave patterns or agreeing new patterns will be the same as the initial process for booking leave.
The employee and their partner can decide to change the way they have allocated the total number of weeks of shared parental leave between them. This would require each employee to give their employer notice that they wish to change their original entitlement notice. The variation notice must set out the total number of weeks of shared parental leave and pay already taken by the parents and the new division of the leave and pay. Both parents need to sign the notice to confirm their agreement to the new division.
The variation notice must give an indication of when the leave might be taken, but it is not a booking notice and does not count towards the cap of 3 notifications to book leave. If the employee acquires more weeks of shared parental leave as a result of a transfer of leave between the parents, any additional weeks are still subject to the cap of 3 notifications to book leave. If an employee has already given 3 booking notices, then they will not be able to take the additional weeks of leave unless you choose to disregard the cap of 3 and to accept one or more additional booking notices.
If the employee gives you a booking notice proposing separate, discontinuous, periods of leave, you do not have to agree to the pattern of leave proposed. There is a 2 week discussion period where the parties can discuss the notice. It is recommended that you tell the employee at the earliest opportunity that the proposed leave pattern is not acceptable.
If you and the employee cannot agree a leave pattern or you do not respond to the employee’s notice, then the leave may only be taken in a single continuous block.
The employee has until the 15th day after giving the notice to withdraw a notice. If the employee decides to take the leave as a continuous block, he or she should tell the employer the date on which the leave will start (it cannot be before a period of 8 weeks from the date the notice was given). If within 5 days of the end of the 2 week period the employee does not specify the date on which the leave will start, then the leave will start on the first date of the first week of leave proposed in the employee’s booking notice.
No. An employee may give notice of all the leave they want to take – be it in a single block or discontinuous leave – in one notification. They then have 2 further opportunities to make changes.
If you do not respond within two weeks of being given the notice requesting discontinuous leave, the notice may be withdrawn by the employee on the 15th day or, if it is not withdrawn, the leave may be taken in a single continuous block.
The employee has 5 days from the end of the two week discussion period to specify the date on which the single block of leave will start (no earlier than 8 weeks from the date the booking notice was given). If the employee does not do so, the single block of leave starts on the first date of the first week of leave proposed in the original booking notice.
There is a 2 week discussion period where you and the employee may discuss a leave notification and also consider alternative arrangements.
At the end of the 2 week discussion period an employee may withdraw the notification without penalty by the 15th day after the notice was given, provided that they haven’t reached an agreement with the employer. We consider that such an arrangement is essential when 2 parents might be applying for complementary periods of leave at the same time and one may be refused.
A withdrawn notification will NOT count towards the cap of 3 notifications.
There is no obligation on you to do any checks, however, it is expected that you will check that the employee does in fact meet the continuity of employment test (26 weeks’ employment) and the average weekly earnings test for 8 weeks requirement (for Shared Parental Pay).
You are not required to make any checks in relation to the other parent. The information on their declaration is taken on trust, although we may ask the employee for the name and address of the other parent’s employer (if he or she has an employer).
Your employee will tell you how much shared parental leave is available to him or her and the other parent. They will also tell you how much leave each of them intends to take and they will give you the written consent of the other parent to the division of the leave. Once it is established how much shared parental leave your employee will take, you should record the cumulative weeks taken as shared parental leave to ensure the entitlement is not exceeded.
Once they have agreed how the shared parental leave will be divided, each parent will need to give their employer notice of when they intend to take leave.
We will not be liable in the event of the employee claiming more leave than they are entitled to and we do not expect line managers to perform detailed checks, e.g. contacting their employee’s partner’s employer to satisfy themselves that their employee is entitled to the leave or pay that they are claiming.
We are entitled to rely on the information about the other parent provided to us by the employee but we can ask the employee for the name of the other parent’s employer and we may contact them.
Employees who deliberately defraud the system could face a significant financial penalty and be required to pay back any amounts that they have over claimed.
HMRC will use a risk based regime to identify parents who have over claimed their entitlement to shared parental pay. Individual claimants can be linked via their national insurance numbers.
In the event of a fraud being detected, we will use our own policies to determine how the employee is dealt with, in the same way that we would rely on our own policy in the event of other misconduct coming to light.
If an overpayment is made to an employee, we will be able to recover the overpayment(s) of shared parental pay in the same way that we currently recover overpayments of additional statutory paternity pay and other statutory payments.
An eligible couple can claim up to 37 weeks of shared parental pay. Shared parental pay is paid to an employee by their employer at the lower of 90% of salary or the flat rate of £151.20 a week (2020-21 tax year).
During any period of shared parental leave an employee benefits from all of the terms and conditions of employment which would have applied if the employee had not been absent from work (except for remuneration), and is bound by any obligations in those terms and conditions (except they don’t need to go to work).
An employee is protected from detriment and from unfair dismissal connected with the taking of shared parental leave. If an employee is made redundant whilst on shared parental leave, he or she is entitled to be offered a suitable alternative vacancy if one arises. This is the same as the level of protection available to a mother on maternity leave.
An employee has a statutory right to shared parental leave if he or she satisfies all of the eligibility criteria. An employer who denied the employee their statutory right to shared parental leave is likely to face a successful challenge in an Employment Tribunal.
Where an employee has 2 (or more) jobs and they qualify for shared parental leave in respect of each employment, they are entitled to take shared parental leave from each of their employers. If the mother/primary adopter wants to take or create shared parental leave for their partner/the child’s father to take and they have 2 (or more) jobs, they must have brought forward the date on which their maternity leave period ends for each of their jobs either by returning to work or by giving notice to end their maternity leave period (the notice must be given to each of the employers at the same time).
A mother/primary adopter cannot take shared parental leave if they have only brought forward the date on which their maternity/adoption leave period ends with one of their employers. A mother/primary adopter cannot still be on maternity/adoption leave in one job and on shared parental leave in another job, because they must curtail all maternity/adoption leave entitlement (from both jobs) for any entitlement to shared parental leave to arise.
The right to return to the same job will be maintained for returning from any period of relevant statutory leave that includes maternity, or paternity, adoption or shared parental leave that totals 26 weeks or less in aggregate, even if the leave is taken in discontinuous blocks. This will mean that an employee who takes 26 weeks or less of any combination of relevant statutory leave will have the right to return to the same job. Periods of unpaid parental leave of more than four weeks are excluded from the ’26 week calculation’.
Once the employee has taken more than 26 weeks of relevant statutory leave in aggregate (including any combination of maternity, paternity, adoption or shared parental leave) then the employee will have the right to return to the same job that they were doing immediately preceding the last period of absence, or, if it is not reasonably practicable for the employer to permit the employee to return to that job, to another job which is both suitable for the employee and appropriate for the employee to do in the circumstances (sometimes referred to a similar job).
Unpaid parental leave is not included in the 26 week aggregate total. Taken in isolation, an employee can take up to four weeks of unpaid parental leave and have the right to return to the same job. If an employee takes more than four weeks in isolation, he or she will have the right to return to the same or a similar job.
If an employee takes a period of more than 4 weeks unpaid parental leave as part of a string of family-related leave, they will have the right to return to the same or a similar job.
There is no prohibition on reasonable contact between an employer and an employee on shared parental leave. The legislation provides for shared parental leave in touch (“SPLIT”) days for the employee to attend the workplace, and telephones calls can certainly take place whilst the employee is on shared parental leave.
Yes. When an employee is at work, they should be paid as per their usual contractual arrangements. An employee on shared parental leave who is entitled to statutory shared parental pay must receive this statutory payment for the weeks he or she is entitled to it.
Yes. The legislation provides that an employee on shared parental leave is entitled to all the benefits of all the terms and conditions of employment (excluding remuneration) which would have applied had the employee not been absent on leave.
If an employee is sick and unable to care for the child, then they are not entitled to take shared parental leave. An employee must be paid sick pay rather the statutory shared parental pay when they are sick.
No, only the parent taking the SPL. There are situations where only one parent will take leave from employment, as long as the other parent (who is not an employee) meets certain criteria. The government's policy is that both parents must be economically active: where one parent seeks leave from employment, their partner must have worked in an employed or self-employed capacity in at least 26 of the 66 weeks immediately before the expected week of childbirth or the week they were notified of the match, earning on average at least £30 a week based on any 13 of those weeks. This is the same as the test of economic activity for maternity allowance.
So, where a mother/primary adopter is an employee but the father/partner is self-employed, or unemployed having recently lost his job, the father will not technically qualify for SPL or ShPP as he has no employer. However, because the father/partner has been economically active, the mother/primary adopter is not restricted to taking maternity leave; she will be able to access the more flexible SPL scheme. This means they will be able to take part of their maternity leave, go back to work, and then take a further period or periods of SPL at a later date, up to 52 weeks after birth.
Alternatively, where a father/partner is an employee, but the mother/primary adopter is self-employed or recently unemployed, the mother/primary adopter has no maternity leave or SPL entitlement, but will qualify for maternity allowance. By curtailing their entitlement to maternity allowance, the mother/primary adopter will be able to give the father/partner access to the SPL scheme, meaning they can take a period or periods of SPL.
A self-employed parent will not be eligible for shared parental leave or pay but if they satisfy the “employment and earnings test” this may enable their employed partner to access shared parental leave and pay.
Page updated: 16/04/2021 14:39:19