Under the new Shared Parental Leave Scheme that will kick in for parents of babies born on or after 5th April 2015, or for two adopters whose child is placed with them from that date, the rules regarding eligibility throw up some interesting questions.

To be eligible, the employees have to have been employed for 26 weeks by the 15th week before the expected week of childbirth or the qualifying week when a child is placed for adoption.  They must also remain continuously employed up until the week before any period of shared parental leave starts.

What happens if the employer faces a redundancy situation and this arises in the period between when the mother has given notice to curtail her maternity leave and the start of the shared parental leave? (A mother has to curtail her maternity leave or an adopter has to curtail their adoption leave to trigger shared parental leave).

If it is more than a week before the couple were due to take shared parental leave, the employee will no longer be eligible.  At the point that the mother realises this, she is required to give 8 weeks’ notice to withdraw her previous curtailment notice in relation to bringing her maternity leave to an end.  If she is outside of this time, perhaps because it is less than 8 weeks until she would have commenced her shared parental leave period, she will be forced to bring her maternity leave to an end on the date that she had given notice.  As she is no longer eligible, the partner may no longer be eligible to take shared parental leave either, leaving the parents with childcare problems and the mother losing out on her maternity pay and her maternity leave.

I would have thought that this would make mothers less inclined to curtail their maternity leave, certainly during the weeks in which they are able to claim Statutory Maternity Pay?

Of course, an employer could decide to be more generous and allow the employee to change her mind on short notice but the employee will fall outside of the Statutory Scheme.

The knock-on effect on the second parent will be a potential reduction in their rights and they will also need to go back to their employer giving 8 weeks’ notice of a change to any dates that they had notified their employer they would be taking as shared parental leave.  Cancelling a period of leave requires 8 weeks’ notice, as does any other change, for example to taking discontinuous periods of leave as opposed to a single block.

Parents are restricted under the new regulations to giving a maximum of 3 notices called a ‘Period Of Leave Notice’ in respect of the actual dates they wish to take.  If the employees involved were unlucky enough to have run out of such Notices, perhaps because they had changed their minds or varied their plans previously, they could find themselves again without the statutory right to make a further change.  Again, they would be at the mercy of their employer to exercise their discretion to allow them to give a fourth notice.

If there is less than 8 weeks before the parent was due to take parental leave and it is no longer reasonably practicable for the employer to accommodate the change in the circumstances, the employer can still require the parent to take the period of leave.

Action points for employers:

  • Review your existing policies and prepare policy documentation for staff on this new right.
  • Consider how you will deal with requests for continuous blocks of leave within the organisation as those sorts of requests are not going to be able to be refused.
  • Consider how requests for discontinuous patterns of leave will be evaluated and responded to – what factors will you take into account?
  • Train managers to ensure they understand the rules and know where to go for further guidance and information.
  • Consider what your pay policy will be as regards enhancement – if you enhance maternity pay – you need to understand what the risks will be of not doing so for shared parental leave.

It is these kinds of problems that suggest to me that employees are perhaps going to be disinclined to exercise their new rights? It also suggests that the drafters of the legislation haven’t thought things through.