Why can’t men have babies?

It’s now time for businesses to start planning how they are going to deal with Shared Parental Leave, as the legislation comes into force on 1st December 2014.

Shared Parental Leave (“SPL”) will apply in relation to children who are due to be born on or after 5th April 2015. It also applies to children who are placed for adoption on or after that date.

SPL gives parents who meet the eligibility criteria more flexibility regarding the leave they take upon the birth or adoption of a child. Both parents essentially share a ‘pot’ of leave which can be taken in turns or at the same time. Mothers will still be required to take at least two weeks’ compulsory maternity leave immediately after the birth but the remaining time (a maximum of 50 weeks) can be shared by both parents as desired.

To be eligible to take SPL an employee must have at least 26 weeks’ continuous service at the end of the 15th week before the EWC, must still be employed in the first week that SPL is to be taken and must give sufficient notice of their intentions. To qualify for Statutory Shared Parental Pay (ShPP) they must also meet the same average earnings threshold as with Statutory Maternity Pay.

In addition to these criteria, the other parent must have worked for 26 weeks in the 66 weeks prior to the EWC and have earned a minimum of £30 in 13 of these 66 weeks.

The new regulations come into force on 1 December 2014, from when employees will have protection from any detriment or dismissal for a reason related to SPL. Employers may also find that employees whose EWC is on or after 5 April 2015 but whose child is born prematurely might qualify for SPL from December 2014 onwards.

The current general rule is that pregnant employees can begin their maternity leave up to 11 weeks before their EWC. This will also be the case with SPL, so for those first employees to whom SPL will apply, they will be able to begin their SPL on or after 18 January 2015.

Does it need to be accepted by the employer?

Continuous: employers may not refuse a request for a continuous period of leave.

Discontinuous: if discontinuous periods of leave are requested, then the employer can agree, or enter into a two week consultation period to consider the request and alternatives to it.  If no agreement is reached during this period, the employee can: (i) take the total amount of leave requested as a continuous block of leave as long as it commences at least eight weeks after the worker’s original request was made; or (ii) withdraw the request for discontinuous leave.

If the employee withdraws the request, he/she could then make three separate requests for continuous periods of leave for, say, eight weeks each (with eight weeks’ notice in between each period), which the employer would have to agree.

Evidencing the entitlement

 The legislation does not require (in fact makes real no allowance for) employers to investigate the circumstances of a co-parent who is not their worker.  In saying this, you may decide to investigate, but be very careful as you must try and avoid discrimination/victimisation claims.

If you would like an overview of the regulations and legal requirements, guidance in developing your policy and to understand and manage the impact on your business, please get in touch.

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