Who will be eligible for shared parental leave? Your questions answered

Shared-leave

The rules on who will be eligible to take shared parental leave are complex, as are the rules on the notice that employees must give. Many employers also have concerns about what is expected of them when it comes to checking whether or not an employee is entitled to shared parental leave and pay.

We continue our series on the new rights by answering questions around eligibility and notice that were raised by the live audience for the Personnel Today webinar Shared parental leave: Preparing your organisation for the new right.

When will employees be eligible to take shared parental leave?

There is a two-stage test for eligibility for shared parental leave: an employee must be eligible in his or her own right and the employee’s partner must also meet certain eligibility requirements.

A mother will be eligible for shared parental leave to care for her child if she:

  • has at least 26 weeks’ continuous employment by the end of the 15th week before the expected week of childbirth and remains in continuous employment with that employer until the week before any period of shared parental leave that she takes;
  • has the main responsibility for the care of the child at the date of the birth (apart from the responsibility of her partner or the child’s father);
  • is entitled to statutory maternity leave in respect of the child;
  • has curtailed her statutory maternity leave; and
  • has complied with the relevant notice and evidence requirements.

In addition, her partner (ie the child’s father or the mother’s spouse, civil partner or partner) must meet certain eligibility requirements for the mother to be entitled to take shared parental leave (see When will the mother of a child be eligible to take shared parental leave?)

For details of eligibility requirements for the mother’s partner to take shared parental leave in his or her own right, see When will the father of a child, or the partner of a child’s mother, be eligible to take shared parental leave?

How much notice that they intend to take shared parental leave must employees give?

An employee must give his or her employer at least eight weeks’ notice to take a period of shared parental leave, but there are a number of different notices that employees must give.

Before either parent can take shared parental leave, the mother must give her employer a leave curtailment notice, setting out the date on which she intends to bring her maternity leave to an end. This must be given no more than eight weeks before the start of the first period of shared parental leave taken by either of the parents.

At the same time, the mother must give her employer:

  • a notice of entitlement and intention to take shared parental leave, providing the employer with information including how much shared parental leave the parents each intend to take and an indication as to when the mother intends to take leave (which is non-binding); or
  • a declaration stating that her partner has given his or her employer a notice of entitlement and intention to take shared parental leave and that she consents to her partner taking that amount of leave.

For more information on the notice of entitlement and intention to take shared parental leave, and on the period of leave notice that must be given before each period of leave requested, see How much notice that they intend to take shared parental leave must employees give?

Can an employer insist on evidence that an employee is entitled to shared parental leave?

When an employer receives notice from an employee that he or she intends to take shared parental leave, it can request a copy of the child’s birth certificate and the name and address of the employee’s partner’s employer. The employee must provide this within 14 days of the request (if the employer requests a copy of the birth certificate before the child has been born, the employee must provide this within 14 days of the birth).

This information will not be enough for the employer to be able to confirm that the employee is entitled to shared parental leave. However, in most cases, the employer should rely on the declarations provided by the employee and his or her partner that they meet the various eligibility requirements. Employers are not expected to check, for example, the earnings and employment history of their employee’s partner.

For more information on how to approach the issue of evidence of entitlement, see Can an employer insist on evidence that an employee is entitled to shared parental leave?

Other FAQs on eligibility for shared parental leave recently published on XpertHR include:

One Response to Who will be eligible for shared parental leave? Your questions answered

  1. Toni 26 Jan 2015 at 11:02 am #

    Mother does not work. can the father have the maternity allowance paid to him in the new laws? and take more than the parental time off?