Five months since the introduction of Shared Parental Leave, most employers still don’t understand it very well. Unless you have had a request to take Shared Parental Leave, you probably haven’t looked too closely at it.
On the fact of it, Shared Parental Leave is very complicated – entitlement depends not just on your employee’s length of service but also their partner’s work history. It doesn’t have to be taken as one continuous block and employees can ask for quite complicated patterns of leave and work.
There has been lots of guidance for employers and employees, but here are some of the more frequently asked questions:
I Enhance Maternity Pay. Do I have to Enhance Shared Parental Pay?
The case of Shuter v Ford Motor Company Ltd dealt with this question in relation to Additional Paternity Leave, Shared Parental Leave’s forerunner. Here the tribunal decided it was not discriminatory for an employer to enhance maternity leave but not additional paternity leave. However, this decision should be treated warily as:
- it is a tribunal decision (rather than an appeal) and does not bind other tribunals
- on this specific set of facts, Ford were able to show a good reason for the policy – it is a male dominated industry and they wished to attract more women (it should be noted that for various reasons this was an indirect discrimination claim rather than direct. Having a good reason is not a defence to direct discrimination)
In deciding whether to enhance Shared Parental Leave, employers should have regard to
- the potential cost – it is estimated that fewer than 10% of eligible employees will take the leave and will take less time off than women on maternity leave.
- do the reasons for enhancing maternity leave also apply to Shared Parental Leave? Are you enhancing to encourage staff to return? For recruitment purposes? To be a family friendly employer?
- Employee relations – an employee who is paid less because s/he is on Shared Parental Leave rather than Maternity Leave is likely to feel less valued. Even if it isn’t unlawful, this will foster resentment.
- The risk of a claim. Until a higher court says unequivocally that it’s OK to enhance Maternity Pay but not Shared Parental Pay, by paying different amounts you are risking a tribunal claim. That will be costly to defend, even if you win.
Can I make employees take the leave in one single block?
No. The most confusing thing about Shared Parental Leave is the idea of continuous and discontinuous leave. And employee must allow a period of continuous leave, but does not have to permit discontinuous leave. But! An employee gets three chances to give notice for Shared Parental Leave, she s/he can take three separate blocks of leave (as long as each block is continuous).
Employers do not have to justify saying not to discontinuous blocks of leave, but it is wise to have a clear policy. In particular it is important to make sure managers understand that while they can say no to a discontinuous block, the employee can then take that as a continuous block. So if they asked to work a week and take a week’s leave on and off over 12 weeks, if the employer says no they can take the block of six weeks leave at once. Sometimes the discontinuous block will be less disruptive.
What if my employee is lying about their partner’s entitlement? Can I check?
Your employee must bring a letter from the “other person” (usually the other parent) certifying that they meet the test for the employee to take Shared Parental Leave. You can contact the other person’s workplace but
- the workplace does not have to respond
- there might not be a workplace (the other person may be self-employed, or have recently lost their job.
HMRC (who administer Statutory Shared Parental Pay) have said that they expect employers to take what they are told at face value – you do not need to investigate the other person. If you do discover an employee is lying then inform HMRC (if there is Statutory Shared Parental Pay involved) and use your normal disciplinary procedures.
What if something unexpected happens, like if my employee’s partner dies?
There are rules about what should happen if one of the parents, or the baby dies. These are complicated and it depends on who dies and when.
If your employee is in such a situation then the last thing you want to do is to make their situation even worse by giving contradictory or incorrect advice, or a manager confusing matters.
If you have clear policies on family leave then the employee’s rights are clear to the employee and managers. If you offer bereavement leave then this should be explained to the employee. Being prepared for the unexpected can make a difficult time slightly less difficult.