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Mother must curtail
Eligibility for shared leave and/or pay only arises where the mother cuts short, or ‘curtails’, her statutory maternity leave (“SML”) and/or statutory maternity pay/maternity allowance. A mother can curtail her SML either by simply returning to work (and giving the employer 8 weeks’ notice), or by giving her employer a leave curtailment notice. A leave curtailment notice must be given in writing, 8 weeks in advance of the proposed curtailment date (i.e. the date on which it is proposed that SML will end). It must specify the date on which the mother proposes to end her SML and must also be accompanied by either a notice of entitlement or a declaration of consent and entitlement (which is basically a declaration by the mother confirming that the father has given a notice of entitlement to his employer). Similarly, the mother must curtail her entitlement to SMP or maternity allowance by serving notice on the person who pays her (be that the employer or the Secretary of State).
Notice of entitlement
A person who is eligible for and intends to take a period of shared leave must submit a notice of entitlement to their employer. This must be done in writing, 8 weeks in advance of the proposed start date of any shared leave. The notice of entitlement must include the following:-
- Names of mother and father (or partner/spouse/civil partner)
- Start and end dates of any periods of SML taken, or to be taken, by the mother
- The expected week of childbirth
- The date of birth of the child (if this has not yet occurred, it must be provided as soon as is reasonably practicable)
- The total amount of shared parental leave available
- How much shared leave the mother and father intend to take
- A non-binding indication of the dates on which the employee giving the notice proposes to take shared leave
The notice of entitlement must also include signed declarations by both the employee and his or her partner/spouse/civil partner. Similar notices and declarations are required for confirming notice of entitlement to shared parental pay.
The third type of notice required is a booking notice. This is required where the employee wishes to actually book a specific block of leave (as opposed to merely notifying the employer of their entitlement). Whereas the dates given on a notice of entitlement are not binding, the booking notice is where dates to become binding. A booking notice must again be in writing and must be given 8 weeks in advance of the period of leave which is being ‘booked’. Booking notices can be given at the same time as the notice of entitlement, or after.
Importantly, an employee is restricted to a cap of three booking notices. Once an employee has committed to a period of shared leave, it is binding. However, there is a mechanism whereby employees can submit notice of variation (to change the dates). It is important to note that an employee must give at least 8 weeks’ notice to vary any booked leave. Any variation notice counts towards the cap of three booking notices. Therefore employees can only chop and change dates so many times.
The final part of the series will cover some of the practicalities arising from the new system, including how leave can be divided up.