Shared Parental Leave and Pay – 17 FAQs and Answers

From April 2015 new parents in Northern Ireland will have access to a fully flexible system of parental leave. New mothers and their partners will be able to take up to 52 weeks of leave in total, to be shared between them either in alternating blocks or taken together. The purpose of this new system is to enable both parents to maintain an attachment to the workplace whilst taking on an active caring role for their new child.

We received many questions about the new laws and their impact on existing statutory and contractual family-friendly rights on the day of our Shared Parental Leave and Pay event at the Merchant Hotel on the 26th March , 17 of which appear in FAQ format below.

Two of our speakers Angela Schettino of Think People and Adam Brett of Jones Cassidy Brett, have answered these below. Additional assistance was provided by Geraldine Lavery from the Department for Employment and Learning, who attended the seminar with their colleagues to help inform official guidance:

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QUESTION: Where a partner has two jobs and is only eligible to take Shared Parental Leave (SPL) for one job - can he still avail of shared parental leave?

ANSWER: On the face of it, yes, the partner can avail of SPL in respect of the job for which he is eligible. In most circumstances the partner will either satisfy the employment and earnings test or not: it is not applied separately to each job. The problem may be if the partner does not satisfy the continuity of employment test, perhaps because he has recently moved to a new second job. However, if he/she is not entitled to leave for job 2, then will he/she not have to be at work for that job and, if so, can he/she then meet the caring requirement in order to qualify for leave from job 1? There's not an obvious answer to this question in reality.

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QUESTION: For operational reasons can emergency services, such as the PSNI or Fire Service, refuse an SPL application e.g. over the marching season?

ANSWER: There is no exemption from the legal entitlements for operational reasons. If the employee has made a request for discontinuous leave the operational reason could be a ground for refusing the discontinuous request, but the employee has an absolute right to take SPL as a continuous request.

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QUESTION: Enhanced maternity pay is offered to females in our organisation. If they curtail their maternity leave, are there grounds for discrimination if we don't offer statutory pay to both males and females; or do we have to offer enhanced Shared Parental Pay (ShPP) to the male for same duration as enhanced maternity pay?

ANSWER: The first part of the question here refers to statutory pay. Where the individual parent meets the qualifying criteria for a statutory entitlement (whether this is maternity, paternity, adoption or shared parental) an employer has no discretion and must pay the required statutory amount.

In terms of enhanced ShPP, government advice is that while there is no legal requirement for companies to create occupational parental leave schemes, a maternity scheme can only be offered to a woman on maternity leave.

What the courts may make of this, is a area on which legal opinions differ. There has been speculation that there is some risk of an indirect sex discrimination claim in the circumstances where enhanced maternity pay is offered but there is no enhanced shared parental pay.  It may be possible to provide a justification for differential treatment, but this will depend very much on the factual situation with the employer.

It should be noted that where a mother curtails her maternity to opt into shared parental leave, at the date of curtailment she is no longer on maternity and therefore no longer entitled to maternity related entitlements. If an occupational scheme was offered to a mother on shared parental leave, it could constitute sex discrimination if such an occupational scheme were not offered to fathers/a mother’s partner.

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QUESTION: Along similar lines, if the mother is entitled to Occupational Maternity Pay under a maternity pay scheme, will she be entitled to OMP/ShPP if she moves to SPL, and will a partner who is not an employee also be entitled to OMP/ShPP?

ANSWER: Assuming that a mother eligible for maternity pay is also eligible for SPL and ShPP, then she will move to whatever scheme the employer offers whilst taking SPL.  This may or may not be an enhanced version of ShPP but why would an employee give up an enhanced payment for a non-enhanced one?  A non-employee will not qualify for ShPP.

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QUESTION: Sticking to these concerns over different enhanced payments for males and females, if an employer maintains enhanced pay for ordinary maternity leave but on a separate policy for SPL keeps it at statutory pay, could this lead to indirect discrimination against males, as the enhanced package isn't made available?

ANSWER: See above - yes there is a risk. We expect the matter will be clarified with test cases in due course.

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QUESTION: With a 6 week period at 90% of earnings for maternity leave, will mothers have to give notice to curtail maternity leave before they give birth in order to take SPL at week 6 after the birth?

ANSWER: Yes.  A minimum of 8 weeks' notice must be provided via curtailment, notification and booking prior to any period of SPL, therefore notice in this case would have been given at least two weeks prior to the EWC.

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QUESTION: Can employers ask for a MAT B 1 certificate for mother and/or partner?

ANSWER: ANSWER: The employer of the birth mother is entitled to request a copy of the MATB1 form as evidence of an impending birth and to establish the EWC when confirming maternity leave and pay. If a subsequent notification is made by either the mother or the partner for SPL the regulations stipulate that the employer may request that a copy of the birth certificate is provided within 14 days of notification.  If the child is not born yet, the birth certificate must be provided within 14 days of the birth.

However, note Regulation 10: Supplementary evidence requirements (birth) of the SPL regulations refers to the birth certificate, name of employers and signed declaration but does not refer to the MAT B 1.  So, it might actually be the case that where an employer is paying enhanced contractual SPL they may stipulate additional requirements to permit their employees to qualify for this but they would not be permitted to withhold statutory entitlements in the absence of a MAT B 1.

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QUESTION: Given a low take-up of SPL, is it not more likely HMRC will investigate in detail because it will not have thousands of claims to check? Does that reinforce the need to follow the rules e.g. to INSIST on 8 weeks' notice of curtailment or refuse to pay out ShPP until HMRC confirms it can be paid?

ANSWER: The regulations require employers to accept 8 weeks' notice and do not extend the opportunity to waive this requirement.  We do not know at this time to what extent HMRC will investigate employers and their procedures/records.

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QUESTION: If the mother and father are living apart are either/both eligible for SPL? How can an employer be sure someone lives with mother? What do we do if she lies?

ANSWER: Divorced or separated parents may share leave and therefore avail of SPL as long as each shares caring responsibility for the child and signs a declaration to confirm this. Parents need not be living at the same address. If it becomes apparent that the employee has lied this may be a matter for discipline by the employer and for investigation of benefits fraud by HMRC. The employer is entitled to rely on the information provided by the employee and we suggest that the forms are retained on the personnel file for a reasonable period, in case of query by HMRC.

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QUESTION: We are concerned about harassment or nasty comments going the way of parents on SPL if they write about their idyllic time off when everyone else is trying to cover for them at work. Is it allowable or best practice to say to parents not to put stuff on social media about their lovely holiday?

ANSWER: It could be dangerous, as a possible detriment to the parents, to say too much to parents exercising their right to take SPL together, just because it's in a lovely location. We suggest the emphasis should be on training managers and staff that people are entitled to exercise the right to SPL, and not to be subjected to harassment, nasty comments or other detriment.

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QUESTION: It seems to be the case that fathers/partners on SPL are protected against redundancy compared to their colleagues who are not on SPL or Maternity Leave. Might it not be more likely that recent fathers are more likely to take SPL as a means of saving a job, given the have an extra mouth(s) to feed, even if it means taking a financial hit whilst on leave?

ANSWER: There is a possibility that SPL may be used as a means to gain favourable treatment during a redundancy selection process. However, we expect this to be a rare circumstance.

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QUESTION: If partner works in security services and can't give details; what does the mother fill out on the form?

ANSWER: There is a clear legal entitlement for the mother’s employer to request the name and address of the partner’s employer. A refusal to provide the information, or provision of inaccurate information, would invalidate the mother’s request for SPL. There is no exemption for provision by security services. The partners may have to choose between disclosure or not taking SPL.

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QUESTION: Under Partner's Eligibility rules - What evidence is required to know that he/she "at the date of birth/adoption must share the main responsibility for the care of the child, apart from the mother"?

ANSWER: The signed declaration is the important evidential requirement that the parents share responsibility for the child.  The employer may also ask for a birth certificate / adoption papers.

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QUESTION: Could you explain how employees could exploit rules and take multiple requests for continuous leave. Can this be stopped within a policy?

ANSWER: Continuous leave requests must be accepted by the employer as long as 8 weeks' notice is provided by eligible employees. There is a statutory cap of three employee notices to book shared parental leave. Therefore, using these three notices to make three separate bookings for relatively short continuous leave, phased over time can, in effect, create a pattern of discontinuous leave.  An employer is not in a position to block this kind of pattern of booking leave but should encourage early and open discussion in the policy to avoid the employee feeling they must force the issue. It should also be noted that this is not an employee exploiting rules but exercising their statutory entitlement.

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QUESTION: My understanding is that there could be a longer window of opportunity for employees to be off than might be the case under maternity leave i.e. the mother could take maternity leave 11 weeks before the birth and take SPL after the birth at some stage until the child is one year old. Would the mother have to return to work 11 weeks before the child's first birthday or return to work at some stage and then make another application for SPL to run before the child is one year old?

ANSWER: There are 52 weeks of leave available to share during SPL, and it should be noted that the 2 weeks after birth are compulsory maternity leave.  If a mother took 11 weeks prior to the EWC as maternity leave plus the 2 weeks compulsory leave after the birth, this would leave 39 weeks to potentially take as SPL.  If the mother wished to be on leave up to the child's first birthday, she would indeed need to return to work for a period before going back onto SLP leave.

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QUESTION: As I understand it an Employee cannot be treated as off sick and also on Maternity leave. If the mother is ill during Maternity leave she is still on leave, unless her period of maternity leave comes to an end, and at that point she is treated as an employee off sick and entitled to whatever sick pay applies - sadly a not uncommon situation with, for example, post-natal depression. In A Maternity situation that is straightforward because the leave comes to an end.

What about where the mother has been on, say, 20 weeks' Maternity leave, and has then curtailed that leave in week 21 with a discontinuous SPL request made the necessary 8 weeks in advance and accepted by the employer? The booking notice specifies that the mother will be at work for weeks 21 to 25 while her partner is on SPL, but will then be taking weeks 26 to 30 as SPL. Unfortunately, while at work in week 24 she falls ill with a fit-note saying she is not fit for work for 4 weeks.  What happens in week 26 - is she treated as off sick, with sick pay if applicable, or is she deemed to be going on SPL, with whatever pay applies?

The problem hasn't arisen before because Maternity leave is only ever one continuous period.

ANSWER: BIS and DEL guidance advises that in the event that an employee is too ill to care for the child during a week that they are meant to be on shared parental leave (SPL) they should inform their employer immediately. In these circumstances their entitlement to be on SPL in the week that they are ill ceases but the employee may be entitled to be absent from work on sick leave. If the employee is entitled to be absent from work on sick leave the employer’s normal policy on sick leave will apply to them.

Where an employee who is claiming statutory shared parental pay (ShPP) for a week does not have the intention at the beginning of that week to care for the child (for example because that person is too sick) then ShPP will not be payable for that week. ShPP will also not be payable in any week where the employee became entitled to statutory sick pay for any part of that week. If they have already received ShPP in respect of a week where they are also claiming statutory sick pay, the employer may be able to recover the overpayment from the employee as an overpayment of wages.

Taking the above information into account, in respect of the scenario above, it would appear that where the employee is due to be in work between two periods of SPL and is absent due illness, normal sick pay should arrangements apply (as there can be no detrimental treatment for those who have exercised their right to SPL and/or ShPP). 

As such, at week 24, where the employee becomes ill, this is sick absence as usual.  When she reaches week 26, and is supposed to be on SPL, I think the issue will turn on whether she is fit to care for the child or not (e.g. it could be possible that someone is unfit for work but still fit to provide care for their child). 

Where a fit note has been provided to indicate that the employee will be unfit for four weeks, I would imagine that it could be appropriate for an employer to assume that the entirety of the this absence is sick unless the mother advises otherwise. Likewise in the absence of any information that the sick absence will extend beyond the expiration of the fit note, it would be appropriate for pay to revert to the ShPP rate in week 28. 

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QUESTION: Our organisation offers enhanced contractual maternity pay. If our employee is the father and opts into SPL after the mother (who works elsewhere) has been off for e.g. 4 months on maternity leave and then curtails the rest, is he entitled to 100% pay for the first 6 weeks of his SPL and 50% for a further 12 weeks etc (taking an example that he has worked for our organisation for over a year).  We will be unaware how much the mother has been paid by her employer, be it statutory or enhanced.  

ANSWER: The difficulty here lies in the difference between the statutory scheme, which envisages sharing both leave and pay, in circumstances where the scheme is (relatively) clear, and contractual enhancements, which are peculiar to each employee and employer.

It is likely that there will be substantial differences in the generosity of the schemes between the two employers - indeed this is one of the most likely reasons for uptake of SPL and ShPP. There is no mechanism for requiring details of the partner's/mother's contractual entitlement, and then seeking to share it. In theory one could write requirements into the contractual scheme but this is likely to be very unwieldy and bureaucratic.

In any event it does not deal with the potential risk of indirect sex discrimination, with a comparison between the employee partner, who is sharing contractual entitlement, with a single parent in the same employee who doesn't share the contractual pay and gets the full amount.

We think that probably the most straightforward way of dealing with this is simply to treat the partner as entitled to the same contractual pay benefit as the mother - i.e. in your example 100% of earnings for 6 weeks, 50% for 12 weeks and whatever ShPP is left for any balance.

Where both mother and partner work for your organisation this will, of course, allow them jointly to access rather more pay than previously. Unfortunately, many of these issues are by no means clear and it is hard to predict what the legal position will be in a few years time.

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Contact details:

Adam Brett abrett@jcbsolicitors.co.uk 

Angela Schettino angela.schettino@thinkpeople.co.uk 

Geraldine Lavery Geraldine.Lavery@delni.gov.uk 

Further information about HR Policies and other issues in employment can be found on the Think People Consulting website at www.thinkpeople.co.uk.

Jones Cassidy Brett is a niche employment law firm based on Belfast’s Ormeau Road.  The Firm is widely recognised as having a dedicated team of employment lawyers who provide a high quality professional service.  In addition to providing advice on all aspects of employment, equality, human rights and industrial relations law the Firm also specialises in public and administrative law.

http://www.jcbsolicitors.co.uk/