Discontinuous shared parental leave: Q&A for employers

 

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 an employee is eligible for shared parental leave he or she can request to take discontinuous periods of leave. A request for discontinuous leave is one where in a single notice, an employee requests leave over a period of time, with breaks between the leave where the employee returns to work, i.e., the employee takes a period of shared parental leave, then returns to work, and then takes a further period of shared parental leave.

Alternatively, the employee can submit 3 separate leave notices, at least eight weeks before each leave notice starts, booking 3 separate periods of leave during the child’s first year in the family.

How and when can an employee request a discontinuous leave?

When an employee gives the employer notice of a period of leave, he or she can request, with at least 8 weeks’ written notice before the start date of the leave, either a single block or discontinuous periods of leave.

If the employee decides to use 3 separate notices to book 3 separate periods of leave, he or she 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 the employee makes a request for discontinuous leave?

Once a request for discontinuous leave is made the employee and employer will have a discussion period of 14 calendar days to talk about the request.

After the 14 days discussion period, what are the employer’s options?
  • Not to respond to the proposal: employers are not under a statutory obligation to respond to a Leave Notice; this is not good practice and it must be borne in mind that doing so will result in the employee’s leave converting to a continuous period from the original start (unless varied by the employee);
  • Agree: if the employer agrees to the proposal then the leave will take place as requested by the employee; it is good practice to confirm this in writing;
  • Agree a modified regime: if the employer agrees a modified regime with the employee then the leave will take place as modified and agreed; an employer can negotiate a compromise and a leave pattern which works for both the employee and the business;
  • 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. It is also good practice for the employer to confirm what options are available to the employee. The fall-back position is that if the discontinued leave is refused (or agreement cannot be reached), the employee is entitled to take the leave as one combined period.
What happens if a discontinuous leave is not agreed or if the employer refuses or not respond to the employee’s request?

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

  • The total amount of leave must be taken as one continuous block unless the employee, by the 15th day after the original date, withdraw his notice and submit a new request. If the employee does withdraw the request it will not count as one of their three notices to book leave.
  • If the employee does not withdraw the request, the discontinuous leave notification automatically defaults to a period of continuous leave.
  • Within 19 calendar days of the original notification, the employee 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 the employee does not choose, the start date automatically defaults to the date the requested discontinuous leave would have first started.

For example:
An employer receives a Leave Notice requesting 4 weeks’ SPL, 4 weeks’ work followed by another 4 weeks SPL.  If the employer refuses to agree to this discontinuous leave pattern the employer is entitled to take 8 weeks’ SPL (the combined 2 x 4 weeks requested) and this will commence on the start date originally notified or the employee 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 an 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 if an employee submits 3 separate leave notices? Can the employer still refuse this request?

No.

If an employee submits 3 separate leave notices, at least eight weeks before each leave notice starts, the employer cannot refuse to allow each of the 3 leave periods to be taken.

There is an over-arching limit on the number of notices to book leave that can be issued – a maximum of 3.

What is the best approach to take as an employer?

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

It is advisable to encourage this approach in any written policy on Shared Parental Leave.

What should employers consider before making a decision on discontinuous SPL request?
  • The impact that the discontinuous leave will have on the business;
  • Any important events planned and how will the role be covered;
  • That an employee can book three periods of leave on three different occasions and take the leave intermittently;
  • An employer should approach each notification for SPL in a consistent and reasonable manner and ensure that they do not act in a way that could be interpreted as discriminatory;
  • A more flexible approach may be easier to manage, as shared parental leave can be agreed outside of key projects and busier periods of work and, by encouraging a dialogue, the employer will be better placed to plan any arrangements and can even get much longer notice than the minimum 8 weeks;
  • More generous shared parental pay could incentivise staff to adopt a pattern for leave which can be accommodated more easily by their business (and be less disruptive and thus more efficient):
    • Offering an enhancement conditional upon early dialogue – where an organisation feels that it needs more than 8 weeks’ notice, to offer enhanced pay to those who provide lengthier notification;
    • Encouraging continuous rather than discontinuous leave through the payment pattern (or vice-a-versa);
    • To pay enhanced pay up to a maximum number of weeks for the first or second period only, and not in respect of absences later in the child’s first year;
    • Where intermittent leave will be problematic, the employer can, for example, pay for the enhanced pay for the first period of leave only.
Flowchart on the process for requesting discontinuous leave

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

Requesting Discontinuous Leave

Requesting discontinous leave for employers

 

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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