Discontinuous shared parental leave: Q&A for employees

 

For information on the basics of shared parental leave – including who is entitled, how much leave they can take, and how the system is designed to work – see Shared Parental Leave: Nuts and Bolts and Top Tips. More information is available on the Employers and Employees pages.

We have also produced a flowchart explaining the process of taking discontinuous leave.

What is discontinuous leave under the SPL regime?

If you are eligible for shared parental leave you can request your employer to take discontinuous periods of leave. A request for discontinuous leave is one where in a single notice, you request leave over a period of time, with breaks between the leave where you will be returning to work i.e., you ask to take a period of shared parental leave, then return to work, and then take a further period of shared parental leave.

Alternatively, you can submit 3 separate leave notices, booking 3 separate periods of leave during your child’s first year in the family.

How and when can I request discontinuous leave?

You can request discontinuous leave from your employer by issuing a formal written leave request at least 8 weeks’ before the start date of the leave. It’s always best to discuss this with your employer first if possible so you know what will work for both you and your employer.

If you decide to use 3 separate notices to book 3 separate periods of leave, you will have also to issue a formal written leave request at least 8 weeks’ before the start of each leave.

See elsewhere on the site for information about eligibility for SPL and the content of Notices to Book leave.

 

 

What happens after I made a single request for discontinuous leave?

 

Once a single request for discontinuous leave is made, you and your employer will have a discussion period of 14 calendar days to talk about the request. During this period your employer may suggest alternatives arrangements for taking the leave. The aim of this discussion period is to enable you and your employer to reach agreement on the leave pattern.

Remember that your employer has the right to refuse discontinuous leave and in the event of a refusal you will be forced to either take the leave in one continuous period or may decide to withdraw the leave notice (see below for more details of these outcomes). As a result of these possible outcomes and to avoid having to withdraw the leave notice or varying the start date, it is a good idea to discuss the discontinuous leave pattern which you are seeking with your employer first; by doing this you can see if you can agree the discontinuous leave (or an acceptable pattern) in principle with your employer before issuing any formal booking notice in writing.

After the 14 days discussion period, what are my employer’s options?
  • Not to respond to the proposal: employers are not under a statutory obligation to respond to a Period of Leave Notice;
  • Agree: if the employer agrees to the proposal then the leave will take place as requested by you;
  • Agree a modified regime: if the employer agrees a modified regime with you then the leave will take place as agreed;
  • Refuse the proposal: if the employer refuses the request (and a modified regime has not been agreed) then the employer should confirm this in writing.
What happens after I made a single request for discontinuous leave?

 

Once a single request for discontinuous leave is made, you and your employer will have a discussion period of 14 calendar days to talk about the request. During this period your employer may suggest alternatives arrangements for taking the leave. The aim of this discussion period is to enable you and your employer to reach agreement on the leave pattern.

Remember that your employer has the right to refuse discontinuous leave and in the event of a refusal you will be forced to either take the leave in one continuous period or may decide to withdraw the leave notice (see below for more details of these outcomes). As a result of these possible outcomes and to avoid having to withdraw the leave notice or varying the start date, it is a good idea to discuss the discontinuous leave pattern which you are seeking with your employer first; by doing this you can see if you can agree the discontinuous leave (or an acceptable pattern) in principle with your employer before issuing any formal booking notice in writing.

What happens if a discontinuous leave is not agreed or if my employer refuses or doesn’t respond to my request?

 

If a request for discontinuous leave is not agreed or the employer refuses the discontinuous leave or no response is given, the defaults provisions will apply as follow:

  • The total amount of leave must be taken as one continuous block unless, by the 15th day after the original date you issued your request, you withdraw your notice and submit a new request. If you withdraw your request it will not count as one of the three notices to book leave; you should ensure you withdraw your request in writing;
  • If you do not withdraw your request, the discontinuous leave notification automatically defaults to a period of continuous leave;
  • Within 19 calendar days of the original notification, you can choose when the continuous leave will commence but it cannot start sooner than eight weeks from the date the original notification was given. If you do not choose, the start date automatically defaults to the date the requested discontinuous leave would have first started.

For example:

You submit to your employer a Single Leave Notice requesting 4 weeks’ SPL, 4 weeks’ work followed by another 4 weeks SPL.

If your employer refuses to agree to this discontinuous leave pattern, you are entitled to take 8 weeks’ SPL (the combined 2 x 4 weeks requested) and this will commence on the start date originally notified or you can choose to change the start date, provided:

  • The new start date is at least 8 weeks’ away; and
  • The varied start date is notified to the employer by the 19th day from the original Leave Notice.

 

Can I force my employer to agree to the discontinuous leave?

No, your employer has the right to refuse; however, you can withdraw your original discontinuous leave request provided you do so by the 15th day. You can then make a new request but it is important to remember that there is an over-arching limit on the number of notices to book leave that can be issued – a maximum of 3. If you submit 3 separate leave notices, instead of a single notice, at least eight weeks before each leave notice starts, your employer cannot refuse your request.

Can my employer have a policy of refusing all requests for discontinuous periods of shared parental leave?

Yes, the employer may decide to refuse all requests for discontinuous leave as a matter of policy, to reduce disruption to the business, but only if the employee requests discontinuous periods of leave in a single notice.

A policy of refusing all requests for discontinuous leave may not be effective in preventing disruption as an employee may, instead submit 3 separate Leave Notices. It may be preferable for the employer to discuss each request with the employee, with a view to reaching an agreement about the pattern of leave.

What is the best approach to take as an employee?

Having an early discussion with your employer can be helpful to explore options and to find out what discontinuous leave arrangements the employer may be agreeable to. It is good practice for employees and employers to do this before formal notices to book leave are given.

 

What should I consider before making a request for discontinuous SPL request?
  • You should be aware of what your employer’s SPL policies are;
  • The availability of other legal rights (such as flexible working requests, annual leave and parental leave) and how they could work alongside discontinuous SPL;
  • Desire for and availability of childcare options;
  • The financial implications of taking discontinuous SPL (pay and pensions);
  • Whether both parents qualify for SPL and how you would like to share the care of your child;
  • The impact that the discontinuous leave will have to the business and your employer;
  • That you can book three periods of leave on three different occasions and take the leave intermittently.
Flowchart on the process for requesting discontinuous leave

(This flowchart can also be viewed separately: see Flowchart: requesting discontinuous leave.)

Requesting Discontinuous Leave

A request for discontinuous leave is one where in a single notice, an employee requests more than one period of SPL For example, an employee issues a notice requesting 4 weeks’ SPL, that they return to work for 4 weeks and take a further 4 weeks’ SPL.

Discontinuous leave chart

EXAMPLES:

1) Anne and her husband are having a child and whilst Anne would like to be at home for the first few months she works in a shop and knows that she will be able to earn more money (tips and commissions) during the Christmas period compared to the rest of the year. Anne sends a formal request to her employer to work this pattern. She discusses the situation with her employer and explains that she is thinking about taking leave in September, October and November, will work December (while family will be around to help with the care of the child), and will then take SPL again in January. The employer agrees with Anne’s request, especially as it takes into account the needs of the business.

2) Amy and her partner are adopting a child and whilst her partner will take the main caring role, Amy would like to be at home for the first three months and then every other week. Amy requested from her employer to take three months of shared parental leave and then to work every other week for the following three months. After the 14 days discussion period, her employer refused this request because that would cause too much disruption to the business. By day 15 Amy decided to withdraw the request and present a new one, this time for a continuous block of shared parental leave.

 

Audrey Williams, Fox Williams LLP

www.foxwilliams.com

 


About SPLash

SPLash (SPL advice on sharing) has been created by an alliance of organisations with expertise in employment law and issues affecting parents at work. Its purpose is the sharing of knowledge and best practice on shared parental leave.

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