The government has passed the Children and Families Act last March. This act lays out a framework for partners or spouses to share maternity leave. The concept is clear: get fathers more involved, the devil is in the detail which is still be resolved. This note sets out the basic requirements which may be modified before the legislation goes live next April. In my opinion it lays yet more administrative burden on the small employer.
Effective October 1st 2014 fathers can take time off to attend up to 2 ante natal clinics. This leave will be unpaid.
From April 2015 for children born or adopted after that date Mothers and Fathers can share parental leave fathers or mother’s partners can take up to 50 weeks or parents can share the leave including taking leave simultaneously. All mothers must take 2 weeks compulsory maternity leave after the bay’s birth.
From April 2015 adoption pay benefits will mirror those of maternity leave except that the father will not have the 1st six weeks of leave at 90% of pay.
The default position is that the mother will continue to have the 52 weeks entitlement as now. Qualifying parents will be able to share up to 50 weeks leave as the mother will be able to transfer her unused portion to the her partner.
The employed parents need to discuss any sharing arrangements with their respective employers in theory there is no need for each person’s employers to contact each other in practice I can’t see how this will operate without mutual discussion
Parents can take shared parental leave either separately or together it can be taken in small chunks not less than 1 week at a time it will be lost if not taken before the child’s 1st birthday. Employers are not forced to agree and unlike flexible working do not have to provide a reason but can propose an alternative. If employer cannot agree employee can take requested time off in one single block at chosen start date which employer must comply with.
To be eligible both parents must have been employed for at least 26 weeks out of the preceding 66 weeks before the child’s birth or matching and must earn at least £30 gross salary per week to qualify for maternity pay average earnings must be £107 per week for 6 weeks before the EWC
The woman must give her employer 8 weeks’ notice to end maternity leave and pay this can be given before the child’s birth so that the transfer can take place immediately after the 2 weeks compulsory leave. This notice is binding unless the mother changes her mind after giving birth.
Both parents must provide each employer with the following information
- Names of Mother and Father
- Start and end date of Mother’s maternity leave
- The balance remaining
- Child’s expected date of birth and week of birth
- How much shared leave each parent intends to take
- A non- binding indication of when the mother and father intend to take their leave from their respective employers.
Plus a declaration from each parent that they satisfy the statutory qualifying conditions for shared leave and that they agree to the division between them
Mother and father’s employers may request evidence to support notice and decision made
Period of Leave notice
As well as the notice of entitlement parents must give their employers not less than 8 weeks’ notice setting out the start and end dates of each period of shared leave.
Notice can be given at the same time as the notice of entitlement provide for more than 1 period of leave and be expressed as a number of days following the child’s birth.
Agreeing periods of shared leave
If notices given request one continuous period of shared leave the employee is entitled to that period.
If notices request discontinuous periods
The employer has 2 weeks to consent or propose alternatives or refuse
The employee may withdraw the notice If no agreement reached
Employee may withdraw notice or take the requested total amount in a block
Varying periods of shared leave
Employee may give notice to vary a period of leave
Vary start or end date change from continuous to discontinuous or vice versa or cancel the amount of leave
Employee may give up to 3 notices to vary in total
Notices to vary because of child’s early or late birth or in response to an employer’s request do not count.
Other items
KIT 20 days for each parent plus whatever the mother has taken during maternity leave
Contract terms remain
Redundancy suitable alternative must be offered
Right to return if total maternity/paternity/adoption/shared leave is 26 weeks or less return to job done pre absence if leave is more than 26 weeks return to same or similar job
Protection from detriment employee cannot be subject to any detriment with relation to any aspect of shared leave and any dismissal following from this will be unfair or automatically unfair
This is a brief overview of the system it is complicated despite the government’s view and several issues are still to be resolved. If you require any help or advice please contact me on 02036407748 or at mnewman@ukemploymentlawadvice.co.uk
Michael Newman