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The previous instalment in this series discussed the notice and booking requirements for taking shared parental leave and pay. We looked at the requirements of booking notices and highlighted that an employee is restricted to a maximum of three booking notices/variations.
How much shared leave is available?
The starting point is the full 52 weeks of statutory maternity leave (“SML”). Deduct from this however much leave the mother has taken before she curtails her SML. The remaining balance is available to be taken as shared leave between the parents/partners.
How can this be divided up amongst parents?
Shared leave can only be taken in blocks of full weeks. The minimum period which can be taken is 7 days. Parents can either take leave in separate blocks or they can take leave at the same time. The system offers a lot more flexibility for employees and arguably a lot more hassle for employers.
Within the limit of three booking notices, employees can apply for either continuous or discontinuous blocks of leave. Employees have an absolute right to take shared leave in continuous blocks. Thus an employee who asks to take 4 consecutive months as shared leave cannot be refused (regardless of the needs of the business).
Slightly different rules apply in relation to requests for discontinuous blocks of leave. For example, an employee seeking to take two weeks’ leave followed by a month at work and then a further two weeks’ leave. Employers have 14 days from receipt of such a request within which to consider it. Employers can refuse, or propose alternative arrangements. Where the employer refuses, the default position allows the employee to simply take the total period of leave requested in a continuous block. The employee has five days following the employer’s refusal to confirm the start date for the leave (which cannot be earlier than 8 weeks after the original booking notice). Alternatively, the employee can, no later than the 15th day after the original booking notice was given, opt to withdraw the notice. A withdrawal in this case means that the original booking notice does not count towards the cap of three notices.
What should employers be doing now?
It remains to be seen how popular the new system will be. However employers should be taking the following steps now:
- Update existing maternity/paternity procedures
- Develop a shared parental leave policy and circulate this to the workforce
- Get to grips with the notice requirements and consider drafting internal style notices.
- Engage with employees over discontinuous leave requests in an attempt to find a workable solution for both parties.
Although it is beyond the scope of this overview, it is worth noting that employers who offer enhanced maternity pay to mothers would potentially be committing unlawful discrimination if they do not offer similar enhanced rates to any partners who are taking shared leave. Review your existing contracts. Take advice about the statutory provisions on discrimination and the requirements of your business.