SPL for employers: return to work

If your employee is having a baby, they may wish to take advantage of the new shared parental leave system. This article is to guide you as an employer through the procedure for when they return to work following shared parental leave, and the consequences if the employee either does not want to return to work or their job no longer exists.

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.

For information on the procedure to follow when your employee wishes to take shared parental leave see Shared Parental Leave: Process and paperwork.

This information is based on the birth of a child. Similar processes apply where a child is placed with a couple for adoption.

Returning to work after SPL – General rule

In general, an employee has a right to return to the job in which they were employed before their absence.  Where your employee has taken more than one period of SPL, he or she has the right to return to the job they were doing before their first period of SPL.

However, this right is qualified. An employee’s rights on return to work after taking SPL will depend on how much SPL they have taken (and whether this was in a single block or in two or more consecutive blocks), and whether the employee has taken maternity, paternity or adoption leave as well.

A refusal to allow an employee to return after SPL in accordance with the SPL Regulations may amount to a detriment or an unfair dismissal – a factsheet on Shared Parental Leave: Detriment, dismissal and discrimination will be published shortly.

Right to return to work to the same job

An employee is entitled to return to the job in which they were employed before their absence in the following circumstances.

 Scenario 1 – employee has only taken SPL

If the employee returns to work after a period of SPL which is 26 weeks or less.

Scenario 2 – employee has taken SPL and relevant statutory leave

If the employee has taken SPL and any other period of relevant statutory leave in relation to the same child, but the total length of the leave is 26 weeks or less. Relevant statutory leave includes SPL, maternity leave, paternity leave and adoption leave. It does not include parental leave.

The right to return to the job in which an employee was employed before their absence means a right to return:

  • With the employee’s seniority, pension rights and similar rights as they would have been if there had been no absence.
  • On terms and conditions not less favourable than those which would have applied if there had been no absence.

However, if any of these aspects would have been changed had the employee remained in employment and not taken leave, then the right to return is to the job including those changes.

References to a job include:

  • The nature of the work which the employee is employed to do under their contract.
  • The capacity and place in which the employee was employed before their absence.

Of course, if a change in tasks, hours or working methods etc could have been contractually required of the employee before their SPL, this can still be required on their return from SPL or thereafter.

Right to return to another job

In the circumstances described below, the position is different.

If it is not reasonably practicable for you to permit the employee to return to the job in which they were employed before their absence, the employee has no right to return to the same job. However, the employee will be entitled to return to another job which is both suitable for them and appropriate for them to do in the circumstances and with terms and conditions which are not less favourable than those which would have applied if they had not taken SPL.

Scenario 1 – employee has only taken SPL

If an employee returns to work after a period of SPL which is more than 26 weeks.

Scenario 2 – employee has taken SPL and relevant statutory leave

If the employee has taken SPL and any other period of relevant statutory leave in relation to the same child, but the total length of the leave is more than 26 weeks.  Relevant statutory leave means SPL, maternity leave, paternity leave and adoption leave. It does not include parental leave.

 Scenario 3 – employee has taken SPL after statutory leave

If an employee returns to work after a period of SPL which is the last of two or more consecutive periods of statutory leave which includes a period of parental leave of more than four weeks, a period of additional maternity leave, or a period of additional adoption leave. In practice, it would be impossible for a mother to take additional maternity leave or additional adoption leave and SPL without having a combined total amount of statutory leave that is greater than 26 weeks. This scenario, therefore, is relevant for partners who have taken parental leave before the mother curtails maternity leave or maternity allowance.

Right to return – flexible working

Employees with at least 26 weeks’ continuous employment can make a request for flexible working for any reason. This might include, for example, requests to work part-time, on compressed hours or as part of a job share arrangement.

Employees should be encouraged to make any application as soon as possible in advance of their return date, so that there is adequate time for full consideration of the request.

The employee may engage the statutory flexible working procedure by making a written request. You then have the three-month decision period (which can be extended by agreement) within which to consider the request, discuss it with the employee (if appropriate) and notify the employee of the outcome. You must deal with the application in a reasonable manner.

Only one request made in any 12-month period will engage the statutory procedure.  There is nothing to prevent an employee from making additional informal requests but there is no obligation to follow the statutory procedure in response to an informal request for flexible working. However, there is a risk that a failure to consider an informal request could give rise to claims for discrimination.

Not returning – redundancy

The employee does not have a right to return to the job in which they were employed before their absence where their role is genuinely redundant.

In those circumstances, where there is a suitable alternative vacancy with you, your successor, or an associated employer:

  • The employee is entitled to be offered that suitable alternative before the end of their existing contract. You cannot make that offer subject to any competitive interview or assessment but you may, of course, assess the employee’s suitability for the role which may well include any knowledge that you have of the employee’s experience and other relevant circumstances.
  • If the employee unreasonably refuses an offer of suitable alternative employment, they may forfeit their right to a statutory redundancy payment. This will only be relevant where they have at least two years’ continuous service with you.
  • The employee’s employment under a new contract of employment must take effect immediately on their previous contract coming to an end.

We will shortly be publishing more detailed information on what happens when an employee’s job becomes redundant during a period of SPL.

Not returning – resignation

If an employee wishes to resign either during or after SPL, resignation must be notified in the normal way. An employee is still required to give the notice period stated in the contract of employment or otherwise agreed.

If an employee resigns during SPL and is still entitled to sufficient SPL to cover the notice period, the employee is entitled to remain on SPL for the entirety of the notice period. However, if the employees resigns after the end of the SPL or lacks sufficient SPL to take them to the end of their notice period, they must return to work for all or part of their notice period unless the employee takes annual leave or sick leave or you have agreed with the employee that they may remain absent (garden leave) or may leave their employment without giving the required notice.

Employees are not required to repay any Statutory Shared Parental Pay already received. Employees should continue to receive it until the end of the 39 week pay period (less any Statutory Maternity Pay or Maternity Allowance or Statutory Shared Parental Pay already received).

It is worth noting that the employee will remain entitled to Statutory Shared Parental Pay for all booked SPL, even if their employment terminates before they have been able to take their full entitlement to SPL.  In this way, you may still be required to pay Statutory Shared Parental Pay to an employee after termination of their employment.  However, if the employee starts work with a new employer during what would have been a period of SPL, then they will lose their entitlement to Statutory Shared Parental Pay.

Employees may be required to repay any contractual Enhanced Shared Parental Pay, but this will depend on the terms of the contract which you should check.

 

© Rachel Crasnow QC, Claire McCann & Siân McKinley, Cloisters

www.cloisters.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.All Logos