Pay for parents taking shared parental leave

For information on the basics of shared parental leave (SPL), including who is entitled, how much leave you can take, and how the system works, see Shared Parental Leave: Nuts and Bolts and Top Tips.

This information is based on the birth of a child but it also applies to couples who are adopting a child, see Shared Parental Leave: fathers, partners and adopters.

 

Amount of pay available to parents

How much pay is available for parents who wish to take SPL?

There is no extra statutory pay available to parents wishing to take SPL (beyond the amounts currently available for Statutory Maternity Pay (SMP)). Statutory Shared Parental Pay (ShPP) is created by the mother curtailing (reducing) her SMP or Maternity Allowance to allow her or her partner to take the remaining weeks of SMP or MA as paid shared parental leave.

SMP is paid for up to 39 weeks at 90% of the mother’s average earnings for the first six weeks and a flat rate of £139.58 per week for 33 weeks (or 90% of the mother’s average earnings if this is less than £139.58).

Maternity Allowance is paid for up to 39 weeks at the flat rate of £139.58 per week (or 90% of the mother’s average earnings if she earns less than £139.58).

A mother must take the two weeks after birth as compulsory leave and pay (four weeks for factory workers) so the maximum leave and pay that is available to share is:

  • 50 weeks shared parental leave (SPL)
  • 37 weeks Statutory Shared Parental Pay (ShPP)

For example, the father or mother’s partner can take four weeks’ paid shared parental leave if the mother reduces her maternity leave by four weeks and her maternity pay by four weeks. Or, if the mother wants to take her leave more flexibly in the first year, she can end her maternity leave and pay early and create shared parental leave and pay to take later in the year.

This means that Statutory Shared Parental Pay (ShPP) can be created for a maximum of 37 weeks at the flat rate of £139.58 per week (or 90% of average earnings if this is less than £139.58).

Do employers have to offer enhanced shared parental pay if they offer enhanced maternity pay?

Both parents should check whether their employer offers enhanced shared parental pay as that may affect decisions on who takes the leave. For example, if the father’s employer offers contractual (i.e. enhanced) shared parental pay, only the father can benefit from that if he takes shared parental leave. The mother will only receive ShPP if she takes SPL, unless her employer also offers contractual pay.

Government guidance says that employers do not have to offer enhanced shared parental pay if they offer contractual maternity pay, however, if the employer does offer enhanced shared parental pay it must be offered to male and female employees taking SPL. In Shuter v Ford Motor Company Ltd an employment tribunal decided that it was not direct sex discrimination to pay enhanced maternity pay to mothers but not to fathers taking additional paternity leave (this was the scheme in force before the introduction of SPL) as male and female partners can share leave. If you think you have been disadvantaged by the pay scheme offered by your employer you should seek advice. You can get free advice from some of the organisations listed below.

 

What happens to the higher rate of SMP if the father or partner takes SPL?

Only the mother (or primary adopter) is entitled to the higher rate of SMP (or Statutory Adoption Pay) for the first six weeks. It cannot be passed on to the father or partner. This means that if the mother returns to work after the minimum of two weeks’ compulsory maternity leave immediately after the birth she will lose the remaining 4 weeks at the higher rate of 90% of her average earnings. If she takes SPL later in the year and claims ShPP, it will be paid at the flat rate of £139.58 per week (or 90% of average earnings if ththis is less than £139.58). If her partner takes all of the rest of her leave and pay as shared parental leave and pay, the ShPP will be paid at the flat rate of £139.58 per week (or 90% of average earnings if this is less than £139.58).

 

Is all the shared parental leave paid?

Confusingly, there are different provisions for leave and pay. Parents need to check if they are entitled to leave and pay and give notice for each separately. Mothers who are employees are entitled to 52 weeks’ maternity leave but only 39 weeks’ maternity pay (if they qualify). Parents who qualify are entitled to share up to 50 weeks’ SPL but only 37 weeks’ ShPP. In reality most parents cannot afford to take unpaid leave. It is up to parents to decide how they wish to split the leave and the pay.

Parents on a low income or whose income is reduced during a period of leave may be entitled to claim Child Tax Credit and/or Working Tax Credit (WTC). The first £100 per week of ShPP is ignored when calculating income for tax credit purposes (as well as the first £100 per week of SMP, Statutory Paternity Pay, Statutory Adoption Pay and all of Maternity Allowance). You are treated as working for WTC purposes during any period in which you are receiving one of the following:

  • ShPP,
  • SMP,
  • Statutory Paternity Pay,
  • Statutory Adoption Pay, or
  • Maternity Allowance,

or you are on:

  • paternity leave,
  • the first 39 weeks of maternity or adoption leave, or
  • SPL where ShPP would be payable.

You must have been working full-time for Working Tax Credit purposes immediately before your leave started. This includes self-employed work and apprenticeships. For more information, call the Tax Credit Helpline on 0845 300 3900.

 

Entitlement to leave and pay

Who can qualify for shared parental leave?

To qualify for SPL, the parent who wishes to take SPL must be an employee and must meet the continuity of employment test, i.e.:

  • s/he must have been continuously employed by the same employer for at least 26 weeks up to the end of the qualifying week (the 15th week before the expected week of childbirth), and
  • must still be employed by the same employer in the week before any shared parental leave is due to start.

The parent taking SPL must also have a partner who meets the employment and earnings test, i.e.:

  • s/he must have been employed or self-employed for at least 26 weeks (not necessarily continuously) in the period of 66 weeks leading up to the expected week of childbirth and must have earned at least £30 a week on average in 13 of those weeks.

How to work out the 15th week before the baby is due
Find the Sunday before the baby is due (or the due date if it is a Sunday) and count back 15 Sundays from there. That is the start of the 15th week before the expected week of childbirth. Use the due date on the MAT B1 maternity certificate for the expected week of childbirth.

 

Who can qualify for ShPP?

In order to qualify for ShPP a parent must:

  • meet the continuity of employment test and their partner must meet the employment and earnings test, see above, and:
  • have average earnings of at least £112 per week (April 2015 – April 2016) during the calculation period (8 weeks or 2 months before the end of the qualifying week).

This is the same as the qualifying conditions for Statutory Maternity Pay (SMP) and Statutory Paternity Pay (SPP). This means that a parent who qualifies for SMP or SPP, will also qualify for ShPP as long as s/he is still employed by the same employer up to the start of the week of ShPP.

Agency workers, casual workers, zero hours contract workers and some freelance workers can qualify for ShPP if they are classed as ‘employed earners’ and meet the conditions above. You are an ‘employed earner’ if your employer pays you through PAYE and deducts tax and National Insurance contributions at source (or would do if you earned enough to pay it).

 

How do agency workers take ShPP if they are not entitled to SPL?

Agency workers should curtail SMP/Maternity Allowance in order to create ShPP and give notice for taking ShPP. As an agency worker is not entitled to SPL, you should agree the time off with the agency and the employer you are working for. You do not have the same rights as employees to return to exactly the same job (e.g. working for the same employer) but you should not be refused work because you have taken time off to have a baby. This also applies to other workers who qualify for ShPP but are not entitled to SPL.

If the agency worker’s partner is an employee, the agency worker can reduce her SMP/Maternity Allowance in order to create SPL/ShPP for her partner to take.

What is the mother entitled to if she is getting Maternity Allowance?

If the mother is an employee and she is getting Maternity Allowance (for example, because her earnings are too low for SMP), she will qualify for SPL but she will not qualify for ShPP. If the mother returns to work early and wishes to take some paid shared parental leave, the mother should give notice to curtail her maternity leave and opt-in to SPL but she should NOT curtail her Maternity Allowance if she wants to claim it later on during SPL. This is because Maternity Allowance continues to run in the background for 39 weeks, even if a mother returns to work early, although she will not receive it while she is actually working. Maternity Allowance is payable for any week of absence during the pay period if the mother is off sick or absent from work.

If the mother takes SPL she can claim Maternity Allowance for any week of absence from work during the 39 week Maternity Allowance period, providing she has not curtailed her Maternity Allowance. However, if her partner wishes to take four weeks’ SPL/ShPP, for example, the mother must curtail her maternity leave and Maternity Allowance by four weeks in order to create SPL and ShPP for her partner.

The mother should contact the Jobcentre Plus to ask for Maternity Allowance to be paid for any week of absence. The decision-maker’s guide has not yet been amended to reflect these provisions. If Maternity Allowance is refused you should seek advice.

 

Do parents have to repay ShPP and enhanced shared parental pay if they do not return to work?

No, ShPP is not repayable if a parent does not return to work after SPL. All employers can claim back 92% of the ShPP paid out (103% for small employers) from HM Revenue and Customs.

If an employer pays enhanced shared parental pay there may be repayment conditions if you leave your job and you should check with your employer. Any repayment conditions must be agreed before the start of the leave and parents should be allowed to repay it in small instalments. Note: you are usually regarded as being ‘back at work’ once shared parental leave period has ended, even if you are on sick leave, annual leave or unpaid leave or you change your hours of work (unless you and your employer agreed otherwise).

 

Can parents still get ShPP if their job ends?

If a mother is made redundant during her SMP period, she remains entitled to be paid up to a maximum of 39 weeks SMP if her job ends or she is made redundant (even if she has returned to work). If she has reduced her SMP period, in order to create some ShPP for her or her partner, she will only be entitled to the SMP that is left. For example, if the mother reduces her maternity leave by 4 weeks for her partner to take as SPL, the mother qualifies for the remaining 35 weeks of SMP (39 weeks less 4 weeks) if she is made redundant.

A parent must be employed up to the week in which SPL/ShPP starts, so if the job comes to an end (e.g. redundancy, resignation) during SPL/ShPP, the parent remains entitled to ShPP up to the end of the period of leave booked (unless s/he starts a new job). If a parent is going to be made redundant and wants to receive the remaining ShPP, s/he should book the rest of the ShPP period before their employment ends otherwise s/he will lose it.

The employer should continue to pay ShPP as if the employee was still at work. If the employer is unable to pay, is insolvent or refuses to pay you should contact the Statutory Payment Disputes Team on 0300 0560 630. See www.gov.uk/recover-statutory-payments/if-you-cant-afford-to-make-payments

 

 

 

 

 

Quick checker for entitlement to SPL and ShPP

 

 

Mother/employee – on maternity leave and SMPPartner/employee – on paternity leave and SPP M and P can take SPL and ShPP  
Mother/self-employed – on Maternity AllowancePartner/employee – on paternity leave and SPP M is not entitled to SPL or ShPP but is entitled to claim Maternity Allowance for any week of absence from work during the 39 week pay period.P can take SPL and ShPP
Mother/employee – on maternity leave and Maternity Allowance. Partner/self-employed – not entitled to paternity leave or pay M can take SPL and claim Maternity Allowance for any week of absence from work during the 39 week pay period.P cannot take SPL or ShPP
Mother/agency worker – on SMP. Not entitled to maternity leavePartner/employee – on paternity leave and SPP M is not entitled to SPL but can get ShPP for weeks of absence from workP can take SPL and ShPP
Mother/agency worker – on Maternity Allowance. Not entitled to maternity leavePartner/agency worker – on SPP. Not entitled to paternity leave M is not entitled to SPL or ShPP but can get Maternity Allowance for any week of absence from work during the 39 week pay period.P is not entitled to SPL but can get ShPP for weeks of absence from work

 

Special notice provisions for pay

How do mothers curtail maternity pay?

To curtail SMP the mother gives notice to her employer to stop payment early. To curtail Maternity Allowance (to create some ShPP for her partner) the mother gives notice to the Jobcentre Plus. Parents must make sure that they want to take the SPL/ShPP before the mother gives notice to curtail leave and/or pay as notice is binding and cannot be revoked (cancelled) except in very limited circumstances. Notice to curtail SMP/Maternity Allowance can only be revoked if the woman’s partner dies or she gave notice before the birth and changes her mind within 6 weeks of the birth. See Notice for shared parental leave and pay – coming soon.

Does the mother have to curtail maternity pay if she returns to work before giving notice for SPL/ShPP?

Yes, if the mother returns to work early her maternity leave ends automatically and she cannot go back onto maternity leave. But, the mother’s entitlement to SMP or Maternity Allowance continues to run in the background for 39 weeks from when it started (the maternity pay period). If the mother returns to work before giving notice to take SPL/ ShPP she must give at least 8 weeks’ notice to curtail the maternity pay period before the end of the 38th week. This means that she will have to give notice by the end of the 30th week of the maternity pay period at the latest. The amount of ShPP available to the parents is counted from the date the mother returned to work. For example, Amy returns to work after 20 weeks’ maternity leave and SMP. She gives notice to curtail her SMP before the end of the 30th week. She and her partner have 19 weeks ShPP to take at any time before their child’s first birthday. They can take it separately or together at any time in the first year, but the maximum is 19 weeks between them.

If the mother is receiving Maternity Allowance she must curtail it at least 8 weeks’ before the end of week 38, i.e. by the end of week 30 at the latest, if her partner intends to take any SPL/ShPP. She should not give notice to curtail Maternity Allowance if she is intending to take SPL as she will need to claim Maternity Allowance during any weeks of absence on SPL. She can only receive Maternity Allowance if she takes SPL within the 39 week maternity pay period.

Can the mother get maternity pay if she is off sick after returning to work?

If the mother is off sick she will go back on to SMP/Maternity Allowance if she is absent from work for a week or more as it continues to run in the background during the 39 week maternity pay period. If she normally receives full sick pay from her employer, the employer must top up the SMP/Maternity Allowance to her full pay. Any SMP or MA the mother receives as a result of sickness during the maternity pay period does not reduce the number of weeks of ShPP available to the parents, as the number of weeks available is worked out from the date she returned to work. For example, if the mother returns to work after 26 weeks’ maternity leave and pay, she still has 26 weeks SPL (52 weeks minus 26) and 13 weeks ShPP (39 weeks minus 26) available to take as SPL/ShPP. If she is off sick and receives SMP for two weeks it will not reduce the parents’ entitlement to SPL/ShPP. Note: SPL/ShPP can only be taken in the first year after the baby’s birth.

Written by Katie Wood at Maternity Action

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