Shared parental leave: four key questions answered

Shared Parental Leave Regulations came into force on 1 December. The new regime will apply to eligible parents of babies due on, or after, 5 April 2015 and the aim is to offer greater flexibility when it comes to managing childcare responsibilities during the child’s first year. 

Fiona Morrison, an associate in the employment team at Brodies LLP, tackles four key questions you may still have.

1. Will both parents be able to take shared parental leave at the same time?

Yes. Both parents can take leave at the same time or they may choose to take it at different times – it is up to them.

Also, remember that the mother’s partner can start a period of shared parental leave while the mother is on maternity leave, provided that the mother has submitted a notice stating when her maternity leave will end and her partner has also complied with his or her notification obligations.

2. What discretion will an employer have to refuse requests for shared parental leave?

Eligible employees can request three periods of leave and, as part of each request, they may seek a continuous or a discontinuous period of leave.

When an eligible employee gives you eight weeks’ notice that they intend to take a continuous period of shared parental leave, there is no discretion available – you must accept the request.

If the request is for discontinuous leave, you have 14 calendar days in which to consider the request and decide whether or not it can be accommodated, before advising the employee of your decision.

• If you can accommodate the request, you should simply write to the employee confirming the dates on which the leave will be taken.
• If the request cannot be accommodated, you should discuss with the employee whether or not it can be modified in any way. An employee must not be pressurised into changing his or her request and they must not suffer detrimental treatment should they not agree to any modifications you suggest.
• If, after discussion, no suitable modifications can be agreed, you can refuse the employee’s discontinuous leave request. It will then be for the employee to decide whether to take the same amount of leave in one continuous block or to withdraw the request completely. If the request is withdrawn at any time on or before the 15th day after it was given, it will not count towards one of the employee’s three requests.

Requests for discontinuous shared parental leave must be properly considered by the employer, and a consistent approach should be taken in the organisation so as to reduce the risk of grievances and/or litigation.

3. Should employers offer enhanced shared parental leave pay?

Many employers offer enhanced maternity pay as a benefit to remain competitive. However, much has been written about the risk of discrimination claims if enhanced maternity pay is available to women, but only statutory enhanced parental leave pay is available to men.

In Shuter v Ford Motor Company, the employment tribunal considered a similar argument in circumstances where an employer offered enhanced maternity pay but only basic statutory paternity pay. Although the practice was found to be indirectly discriminatory, the employer was able to objectively justify it. Relying on statistical evidence, the employer demonstrated to the tribunal that it had very few female employees and enhanced maternity pay was offered to combat that issue, and since the introduction of enhanced maternity pay, the number of female employees had increased.

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Shuter may be subject to challenge and it is not binding on other employment tribunals. However, for the time being, the decision is useful if you currently offer enhanced maternity pay and are considering offering statutory shared parental leave pay. When it comes to thinking about the basis on which you may be able to objectively justify offering enhanced maternity pay, but only statutory shared parental leave pay as being a proportionate means of achieving a legitimate aim, remember that cost considerations will not, of themselves, objectively justify indirect discrimination.

4. What should you be doing now to prepare?

• Consider the impact that shared parental leave may have in your organisation, especially requests for discontinuous leave.
• Devise and roll-out training for line managers on the new regime and their handling of requests for leave.
• Consider your existing family-friendly benefits and decide whether or not to offer enhanced shared parental leave pay, ensuring that your decision is well-reasoned and properly documented.
• Draw up a policy and template documents that record decisions and rationales to assist managers and provide evidence in the event of claims being raised.
• Amend your existing maternity, paternity and adoption policies to reflect the new regime and dovetail with the new policy.
• Think about how you will communicate the new policy (and amendments to existing policies) to staff to make sure they are all aware of the various notification requirements.
• Decide how you will keep track of requests and periods of leave taken.