Update - Shared Parental Leave

Although shared parental leave rights are set to be introduced next year (applicable for babies expected from, or children placed for adoption from, 5 April 2015) employers would be wise to take stock of the changes now. This is because it is around this time that employees could start to find out that they are expectant parents of babies due in April 2015, and consequently they may start to raise queries or concerns regarding their rights to shared parental leave.

What are the changes?

The key aim of the changes is flexibility, and the current provisions entitling mothers to up to 52 weeks of leave and shorter paternity leave rights will soon only be one of several options available. Employed mothers will also continue to be entitled to 39 weeks of statutory maternity pay/maternity allowance; however the shared leave will be able to be taken consecutively or concurrently, as long as the total period taken jointly does not exceed the total amount available.

With regards to compulsory maternity leave requirements, these will not change, with most employees required to take 2 weeks. However, any of the leave left over (up to 50 weeks) will be available for sharing.

Mothers and primary adopters without partners who qualify will still be able to "opt in" to shared parental leave in order to achieve flexibility for their parental leave dates.

Moreover, from 1 October 2014 partners of expectant mothers, including in some circumstances intended surrogacy parents, will have an additional right to unpaid time off work to attend up to 2 ante-natal appointments.

Adopters will also have the same rights as other parents to shared parental leave and pay. From 5 April 2015, primary adopters will have the right to paid time off to attend adoption appointments, and their partners will be entitled to unpaid time off to attend these appointments.

Intended parents in surrogacy who meet certain criteria will be eligible for statutory adoption leave and pay and Shared Parental Leave and pay.

Finally, the 10 current "keeping in touch" days will be increased by up to 20 extra days, which will be linked to the period of shared parental leave.

How will it work?

New parents wishing to share their parental leave and pay will need to "opt in", as otherwise the current provisions for maternity leave/adoption leave will apply.

Furthermore, each parent will now need to take part in early discussions with their employer to discuss how they intend to take the shared parental leave, serve appropriate notices and provide any evidence requested.

Also note that there is a six-week window after the child's birth, during which a mother who has previously stated she intends to share her leave can change her mind and decide to remain on leave.

Considerations for employers

Employers are advised to prepare for the changes as follows:

• Become familiar with the new rights and consider their impact on the business.
• Review and update policies and procedures (including maternity, paternity and adoption leave policies), and develop a policy to set out the rules and procedures for applying for and taking shared parental leave.
• Consider updating any disciplinary policy to cover the provision of fraudulent information regarding shared parental leave in the examples of instances amounting to misconduct/gross misconduct.
• Prepare precedent forms to ensure employees include all required information in any notice or request for leave.
• Consult employees on any proposed policy and communicate the policy to all employees.
• Train managers on the changes, employee rights and employer obligations.
• Update payroll systems.
• Arrange early and informal discussions with relevant employees to discuss options available and ensure employees are aware of their statutory rights and any contractual schemes available.
• Consider the practicalities of the shared parental leave, such as will leave be taken in one period or discontinuous periods, does a discontinuous leave request need any modification, and who will provide cover in the employee's absence.
• Be careful not to inadvertently discriminate against employees making a request in relation to the Equality Act 2010 for reasonable adjustments in working.

Although it is likely that the number of employees initially seeking shared parental leave will be low when the rights are first introduced, as awareness of the new rights will likely take some time to filter through to employees, the implications and risks to employers due to the changes are significant, and preparation will be key to managing these risks.

If you need any guidance on the shared parental leave changes, assistance in preparing for the changes or in reviewing or preparing relevant policies and procedures, please contact Stephen Moore, or another member of our Employment Team.