What are the basics of shared parental leave?
Shared parental leave (SPL) allows parents of a child born after 4 April 2015 more flexibility to share time off work to care for their child during its first year of life. SPL is not to be confused with parental leave, which will continue to be available to parents who qualify, as will maternity leave, paternity leave and adoption leave. Adoptive parents have the same rights to SPL and Shared Parental Pay (ShPP).
Who qualifies for SPL?
To qualify for SPL the child's mother must have the right to:
Statutory Maternity Pay (SMP)
statutory adoption leave, or
Statutory Adoption Pay (SAP)
The mother must cut short her right, so the rest of her entitlement can be taken as SPL and ShPP.
To be eligible, a mother must have:
been working for at least 26 weeks out of the 66 weeks before the baby is due to be born (the 26 weeks don’t need to be in a row)
earned at least £390 in total across any 13 of the 66 weeks (the 13 weeks do not have to be in a row)
The mother's partner must have:
worked for the same employer for at least 26 weeks at the end of the 15th week before the week the child is due (and still be working for the employer when they start SPL)
earned an average of at least £123 a week
How does SPL work?
A mother can reduce her right to maternity leave by:
returning to work before her full 52-week maternity entitlement has been taken, or
by giving notice that her leave will end on a set future date. This allows the mother's partner to take leave while the mother is still on maternity leave and/or receiving maternity pay
The mother must take at least the first 2 weeks after childbirth off work (4 weeks if she works in a factory), but SPL can start any time after that. SPL can only be taken in the first year following the child's birth and any leave not taken in the first year is lost.
During SPL each parent can use up to 20 ‘Shared Parental Leave in touch’ days to go to work without ending SPL.
SPL must be taken in weekly blocks and can be taken in a single block or in separate blocks if agreed by the employer (if this is not agreed, the employer can ask the employee to take a single block on the employee's preferred dates). An employee can make at least 3 requests to book or vary SPL but must notify their employer of their right and book the leave with at least 8 weeks’ notice.
ShPP is available if an employee meets all the eligibility criteria set out in the section ‘Who qualifies for SPL?’ above. In addition, the mother’s partner must also be an employee and not a worker.
A mother (including an adoptive or surrogate mother with parental responsibility for the child) must be entitled to 39 weeks of SMP, SAP or MA and must reduce the number of weeks she is paid SMP, SAP or MA.
This means the maximum ShPP a father or partner of the mother can take is 37 weeks while taking SPL. ShPP is the lower of 90% of an employee's pay and the minimum rate set by the Government each tax year (£172.48 a week as of April 2023). An employee will only qualify for ShPP if they qualify for SPL.
Employees can use the government’s online calculator to check their eligibility for SPL and calculate their pay entitlement.
Returning to work
An employee has the right to return to the same job if they take 26 weeks or less SPL, maternity, paternity, adoption and/or parental leave in total. If the employee takes more than 26 weeks of leave they will have the right to return to the same job, or if not reasonably practicable, a similar and suitable job.
What relationship must the employee have with the child?
Only employees with parental responsibility can take SPL. This means they must be the child's biological parent (whether or not living with the child) and expect to have some responsibility for its upbringing. Alternatively, they should be a surrogate parent, the child’s adoptive parent or the spouse (or partner) of the child's mother or adopter and expect to have main (shared) responsibility for its upbringing.
Tricky shared parental leave issues
The employer may find it useful to introduce a Shared parental leave policy, as there are some difficult areas and a clear process will assist both employers and employees in making this easier to deal with.
If a mother changes her mind about reducing her maternity leave to share parental leave, this is allowed but will have implications for her partner's leave and you should Ask a lawyer if you are unsure about this.
Holiday continues to accrue during SPL. It is risky to prevent employees from carrying forward accrued holiday, if the holiday year-end falls during their SPL, as the law is unclear on this matter.
If you cannot agree on the timing of SPL with an employee and need further advice on how to handle this situation, or you agree to your employee’s leave request but the other parent's employer does not, Ask a lawyer.
An employee is protected from detriment and from unfair dismissal connected with the taking of SPL. If an employee is made redundant whilst on SPL, they are entitled to be offered a suitable alternative vacancy if one arises. Further, if an employee has taken more than 26 weeks of SPL and it is not reasonably practicable for them to return to the same job, they should be offered a suitable alternative. In both of these cases, Ask a lawyer about what represents a suitable alternative job for that employee and how to practically deal with the situation.