Currently mothers are entitled to 52 weeks’ maternity leave and 39 weeks’ statutory maternity pay.  Fathers are entitled to two weeks’ paternity leave and pay and can also take up to 26 weeks’ additional paternity leave, although it can only be taken if the child’s mother has returned to work and it can only be taken in a period beginning 20 weeks after the child is born and ending on the child’s first birthday.

Under the new rules mothers will still get up to 52 weeks’ maternity leave and 39 weeks’ pay and fathers will still be entitled to take two weeks paternity leave.  However, the right to additional paternity leave will be abolished.  Instead, families will be able to take shared parental leave if they meet the qualification requirements.

Once a mother has taken a period of two weeks’ compulsory maternity leave, the rest of the 52-week leave entitlement and 39-week pay entitlement will be available for one or other of the parents to take.  Parents could take turns being off work to care for a child or they could choose to be on leave at the same time as long as the total time taken does not exceed 52 weeks.  The leave does not have to be taken in a single block and employees can take time off before returning to work then going on leave again.

In order to qualify for leave, certain criteria need to be met.  If a mother wishes to take shared parental leave, she needs to have been employed for 26 weeks by the 15th week before the child’s expected week of birth (‘the continuity of employment test’).  Apart from her partner, she must have main responsibility for caring for the child and she must be entitled to statutory maternity leave.  In addition, her partner must pass a minimum threshold for earnings (‘the employment earnings test’) and, apart from the mother, have responsibility for caring for the child.  A father will be entitled to take shared parental leave if he passes the continuity of employment test set out above, has main responsibility for caring for the child (apart from the mother) and the mother of the child passes the employment earnings test, also has responsibility for the child and is entitled to maternity leave, maternity pay or maternity allowance.

If parents qualify to take leave, the mother will need to curtail her maternity leave either by returning to work or serving a Maternity Curtailment Notice, stating when her leave will end.  They also need to give a Notice of Entitlement and intention to take parental leave to their employer.  This is a nonbinding indication of how and when a parent intends to take the leave, including the start and end dates for each period of leave.  This must be given at least eight weeks before the start of the first proposed period of leave and include a declaration by the other parent consenting to the proposal.  Parents must finalise their requested period (or periods) of leave by giving a period of leave notice at least eight weeks before the proposed start date of the leave.  If the period requested is one continuous period of leave, the employer must accept it.  However, where the parents have requested a discontinuous period of leave, the employer has two weeks to accept the request, propose alternatives or to refuse it.  The employee is entitled to serve up to three notices requesting leave.

The rules are complicated and it is recommended that employers prepare for shared parental leave policies to guide employees and their managers through the process.

This article is intended to be a general introduction to the law in this area.  If you have any specific queries arising out of this article, please contact Simon Blake on 01756 700200 or sjb@walkerfoster.com