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A new type of leave arrangement

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Consilia Legal, Marie walsh

By Marie Walsh – Consilia Legal

Shared Parental Leave is a new legal entitlement for eligible parents of babies due, or children placed for adoption, on or after 5 April 2015.

Parents will remain entitled to take maternity, paternity and adoption leave. However the difference with shared parental leave is it provides eligible parents with the opportunity to be more flexible when considering care arrangements for their child during the child’s first year.

The amount of leave available is calculated using the mother’s entitlement to maternity/adoption leave, which allows them to take up to 52 weeks leave. However the mother must take at least 2 weeks maternity leave following the birth of a child (if she works in factory then she must take 4 weeks).

If the mother reduces their maternity/adoption leave entitlement or their maternity allowance or maternity pay then they and/or their partner may opt-in to the Shared Parental Leave system.

Unlike maternity/adoption leave, eligible employees can stop and start their Shared Parental Leave and return to work between periods of leave.

Each eligible parent is able to submit three notices booking periods of Shared Parental Leave.

To trigger the right to Shared Parental Leave for one or both parents, the mother must:

  • Have a partner
  • Be entitled to maternity/adoption leave; or to statutory maternity/adoption pay or maternity allowance (if not eligible for maternity/adoption leave)
  • Have shortened, or given notice to reduce, their maternity/adoption leave, or their pay/allowance (if not eligible for maternity/adoption leave)

A parent who intends to take Shared Parental Leave must:

  • Be an employee
  • Share the responsibility for the child with the other parent at the time of the birth or placement for adoption
  • Have properly notified their employer of their entitlement and have provided the necessary declarations and evidence. Further details of this can be found in the ACAS guidance on Shared Parental Leave.

In addition, a parent wanting to take Shared Parental Leave is required to satisfy the “continuity of employment test” and their partner must meet the “employment and earnings test.”

It is important to understand these tests and as such we have included further information on these below:

Continuity of Employment Test means:

The individual has worked for the same employer for at least 26 weeks at the end of the 15th week before the child’s expected due date/matching date and is still working for the same employer at the start of each leave period.

Employment and Earnings Test means:

In the 66 weeks leading up to the baby’s expected due date/matching date, the person has worked for at least 26 weeks and earned an average of at least £30 (as of 2015) a week in any 13 weeks.

When you consider the requirements for Shared Parental Leave it may be that only one parent will actually be eligible to take the leave, for example a self-employed parent will not be entitled to take Shared Parental Leave but they may still pass the employment and earnings test so their partner, if they are an employee, may still qualify.

Employers and employees will find that having early conversations regarding leave intentions will be beneficial, enabling them both to be clear about what leave arrangements are being considered and how this can be accommodated.

As of the 4th of August 2015

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