Maternity, paternity and shared parental leave

On behalf of Attwaters Jameson Hill posted on Wednesday, October 4th, 2017

Many new parents find themselves juggling work with childcare, and it's often the mother who shoulders much of the burden. While maternity leave is a well-established right that is widely taken up, paternity leave is less well understood and fewer organisations offer more than the statutory norm. Meanwhile, shared parental leave still causes some confusion amongst parents and employers alike.


Maternity leave

Women can take up to a year off, but can also opt not to take the full 52 weeks. To establish what their options are, they need to notify their employer at least 15 weeks before the baby is due, at which point the employer has 28 days to set out a return date.

To be eligible for statutory maternity pay, women must have been earning on average an amount which at least equals the lower earnings limit which applies on the Saturday at the end of their qualifying week. The lower earnings limit is the amount one must earn before being treated as paying National Insurance contributions.

Women receive 90 per cent of their average weekly earnings for the first six weeks. For the next 33 weeks, it drops to £140.98 or stays at the 90 per cent threshold, whichever is the lower figure. If the entire year is taken, the last 13 weeks will be unpaid.

Paternity leave

New fathers are entitled to either one or two consecutive weeks of paid paternity leave. To qualify, they need to have been in the same employment for at least 26 weeks prior to the 15th week before the child is due, and they will need to take their paternity leave within 56 days of the child’s birth. The statutory amount is £140.98 or 90 per cent of average earnings, whichever is lower.

Shared parental leave

In recognition that the responsibility needs to be shared more equitably between parents, the law was changed in 2015 to introduce the concept of ‘shared parental leave’ (SPL). This allows parents the right to split up to 52 weeks of shared parental leave between them, as well as up to 39 weeks of statutory shared parental pay.

SPL can be taken at any time from the date the child is born (or in the case of adoption, the date of placement) and ends 52 weeks later. It must be taken in complete weeks and may be taken in a continuous period, which an employer cannot refuse, or in a discontinuous period, which the employer can refuse.

To qualify, parents need to have the same employment for at least 26 weeks prior to the 15th week before the child is due, and they need to still be employed the first week it is taken. This is referred to as the continuity test and one parent will need to satisfy this requirement.

The other requirement is an employment and earnings test. The employee must have worked for at least 26 weeks in the 66 weeks leading up to the due date, and have earned above the maternity allowance threshold of £30 per week in 13 of the 66 weeks. Those on SPL receive £140.98 a week.

How it works in practice

Mothers must still take the first two weeks after the birth as maternity leave, but they can then cut their maternity leave short and exchange it for SPL. Both parents then have the flexibility to decide how to split the rest of the 50 weeks’ leave between them.

So, if a mother ends her maternity leave 12 weeks after the birth of her child, that means she has 40 weeks left. She can, for instance, choose to take 30 weeks’ leave and this would mean her partner can take the other 10 weeks. Alternatively, they could decide to take 20 weeks’ leave at the same time, or at different times.

Why take-up has been low

A recent study has shown that just five per cent of new fathers and eight per cent of new mothers have opted to take SPL. However, as statutory paternity pay is relatively low, and many employers now offer maternity pay over-and-above the statutory minimum for women, some couples would lose out financially if the father were to stay at home.

However, a father recently successfully argued that his employer’s failure to match enhanced rates of pay when taking SPL amounted to direct discrimination. In Ali v Capita Customer Management Ltd, the tribunal ruled that the complainant could compare himself to a female employee who was taking leave to care for her child, although this would not apply until after the two-week compulsory maternity leave period.

We’ll be watching events in this area of law, and will report developments.

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