EMPLOYMENT LAW NEWSLETTER – SEPTEMBER 2014
This month we focus on the introduction of Shared Parental Leave. We also discuss other hot topics in employment and HR law at the moment that will affect you including the ongoing government consultation regarding zero hours contracts, male employees being able to take time off for antenatal appointments, the announcement from the Labour party about their intentions for Employment Tribunals if they win the next General Election, the enforcement of the national minimum wage and a recent European Court decision which decided that holiday pay should include commission payments.
1. FOCUS ON… SHARED PARENTAL LEAVE
The government has now published regulations to implement a system of shared parental leave and pay. The government’s intention was to introduce a system which would allow parents more flexibility to choose how they share childcare responsibilities in the first year after a child’s birth or adoption.
The regulations, which come into force in December this year, are complex and employers will need to be aware of an employee’s rights and the process that should be followed. The new system will apply to parents of babies due (or matched/placed for adoption) on or after 5 April 2014. However, employers may start receiving notices of eligibility and the intention to take shared parental leave from qualifying employees in January 2015.
Eligible employees will continue to be entitled to 52 weeks’ maternity or adoption leave (which includes 2 weeks’ compulsory maternity leave) however, they will be able to issue notice to end their maternity/adoption leave and opt to take Shared Parental Leave. This would allow both parents to share up to a maximum of 50 weeks’ leave.
In practical terms, this means that a mother or adopter can share some of the leave with her partner and if necessary take the leave in a number of separate blocks.
Shared Parental Leave will apply to employees who would normally be entitled to maternity leave or adoption leave and pay and who will have the main responsibility for caring for the child with the child’s father or her partner.
- In order to qualify for Shared Parental Leave:
- The mother/adopter must have been employed by the same employer for at least 26 weeks at the “relevant date”. The relevant date is the end of the 15th week before the expected week of childbirth (EWC) or the date the child is matched for adoption.
- The father/partner must have worked for his/her employer for 26 weeks in the 66 weeks leading up to the due date and have earned above the maternity allowance threshold of £30 per week in 13 of those 66 weeks.
- In order to qualify for Shared Parental Pay the mother/adopter must have earned an average salary of the lower earnings limit (currently £111) for the 8 weeks prior to the 15th week before the EWC.
Period of Leave
Leave can either be taken in a continuous period, which an employer cannot refuse, or in a discontinuous period, which an employer can refuse.
Shared Parental Leave may be taken at any time within the period which begins on the date the child is born or the date of the placement and ends 52 weeks after that date.
If they meet the eligibility criteria, parents will be able to share up to 37 weeks’ statutory Shared Parental Pay.
Notification of Parental Leave
Eligible parents will need to decide if Shared Parental Leave is the best option for them. Ultimately it is for the mother or primary adopter to decide whether to end their maternity/adoption leave early and opt into Shared Parental Leave.
Mothers/adopters can choose to opt into Shared Parental Leave at any time, so long as there is some untaken maternity leave to share.
Notice of Entitlement and Booking Leave
An employee opting for Shared Parental Leave must notify his or her employer of their entitlement and demonstrate that they satisfy the eligibility criteria. They must “book” the leave they wish to take giving their employer at least 8 weeks’ notice.
Each eligible employee can give their employer up to 3 separate notices. Each notice can be for a block of leave or it may be for a pattern of discontinuous blocks of leave.
If a parent/adopter askes for discontinuous blocks of leave in a notification, the employer can refuse and require that the total weeks of leave in the notice be taken in a single continuous block.
However, where the employee’s notification if for a continuous block of leave, the employer is required to agree with the request. It is therefore beneficial for an employer to discuss and attempt to agree the way in which the different blocks of leave can be taken.
Notice of Entitlement
If an employee wishes to take shared parental leave, they must provide their employer with a notice of entitlement to take shared parental leave. The notice must be given at least eight weeks before the start of a period of Shared Parental Leave. Each parent entitled and intending to take Shared Parental Leave must give their employer a notice which must include:
- How much leave is available;
- How much leave they are entitled to take;
- How much leave they are intending to take; and
- How they expect to take the leave.
What to do if you receive a notice from an employee
You will need to consider:
- Whether the request for leave is for one continuous block or discontinuous blocks;
- What cover will be needed for the employees absence;
- Will a discussion with the employee be beneficial at this time; and
- Are any modifications to a discontinuous leave request required.
Having an early and informal discussion can provide an opportunity for you to talk to the employee about their preferences and the impact this would have on your organisation, particularly in relation to a request for discontinuous leave.
Depending on the circumstances involved, you could:
- Accept the continuous leave notification;
- Attempt, without exerting any pressure, to reach an agreement with an employee to amend their continuous leave notification; or
- Refuse a discontinuous leave notification.
If the employee withdraws their notification, within 15 days of it being made, it will not count as one of the 3 notifications an employee is allowed to make.
If you refuse a discontinuous leave notification, the employee would still be able to take the leave as one continuous block. The employee can choose when this leave period will begin within 19 days of the date the notification was given to you but it cannot start sooner than the initial notified start date.
To coincide with the introduction of Shared Parental Leave, this month we are offering a Shared Parental Leave Policy to insert into your Employee Handbook for £50 plus VAT. If you would like to take advantage of this offer please contact a member of the team.
For more information in relation to Shared Parental Leave, please contact a member of the team.
The Employment Team
Gabb and Co