SPL for employers: the process and the paperwork

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, and to make sure you have the necessary documents in place.

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 .

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

Do I need a Shared Parental Leave Policy?

There is no legal requirement for employers to have a written policy on SPL although most larger employers will have one. Even very small employers may find it helpful, as a ready source of guidance for employees about how to take shared parental leave if they want to.

Acas has produced a straightforward policy that can be adapted for most organisations, as well as other information on the basics: see their materials at http://www.acas.org.uk/index.aspx?articleid=4911. You can also suggest employees take a look at the government’s online guidance at https://www.gov.uk/shared-parental-leave-and-pay.

The SPL opt-in notice

As an employer you should aim to get an idea of your employee’s plans as early as possible, before any formal paperwork is completed. However, the first formal step for the employee is to submit the SPL opt-in notice (sometimes called a notice of intention to take SPL) – see the template forms from Acas. They must give this to you at least eight weeks before they plan to start taking SPL. If your employee is the child’s mother she will also have to complete a maternity leave curtailment form (see below).

The purpose of the opt-in notice is for your employee to give you information including:

  •  Information on eligibility (e.g. has the employee worked long enough to claim SPL? Does their partner meet the necessary employment and earnings criteria?)
  • The expected week of childbirth.
  • Maternity leave dates.
  • How much SPL is to be taken by each partner (this can be changed later).
  • A provisional indication of the employee’s planned SPL dates.
  • The employee’s partner’s details, and a declaration by the partner that they agree to the intended SPL.

If your employee is also eligible for Shared Parental Pay (ShPP) the same information will need to be given about ShPP i.e. how much is to be claimed, by whom, and a provisional indication of the dates the employee is likely to claim it.

Don’t assume an employee on SPL will automatically want to claim ShPP for all (or any) of their leave. Parents have a choice how to split their ShPP entitlement, and your employee may want their partner to claim it all.

The maternity leave curtailment notice

In order for either parent to take SPL, the mother must end (or “curtail”) her maternity leave period early, by giving a notice. If the mother is your employee, she must give you at least eight weeks’ written notice of the date she is going to curtail her maternity leave. This notice is binding and can only be revoked in one of the following exceptional cases, (and only if the curtailment date has not yet passed):

  •  If her partner dies.
  • If it transpires that neither the employee nor her partner meets the eligibility criteria for SPL.
  • If she gave you the notice before birth, and she changes her mind after birth (in which case she has six weeks following the birth to do so).

The curtailment notice must be given together with an SPL opt-in notice (if she is planning to take SPL straight away), or a declaration that her partner has submitted an SPL opt-in notice to their employer.

There is no maximum length of time for which a curtailment notice can run. For example, your employee may give you a curtailment notice saying that her maternity leave will end in 6 months’ or 9 months’ time. Her partner may take SPL from their employer while your employee is still on her maternity leave.

Checking eligibility

The declarations by the employee and their partner in the SPL opt-in notice should contain enough information for you to work out if your employee is eligible for SPL and/or ShPP (see Gov.uk pages on eligibility). You are allowed to ask who their partner works for, but you do not have to follow up or check they are telling the truth. It is an offence for them to give false information in order to claim ShPP.

The SPL booking notice

Your employee must give you a “booking notice” (sometimes called a “period of leave notice”) giving the dates they intend to take SPL (and claim ShPP, if applicable). They must give you the notice at least eight weeks before they want SPL to start.

If the booking notice gives a single unbroken period of leave you have no choice but to accept it. The employee has complete control over the timing and length of the leave (although they must take it in blocks of whole numbers of weeks, they cannot take more than their overall entitlement, and they cannot take it after the child’s first birthday).

The employee may submit up to three booking notices. This means that they can take up to three separate periods of SPL. They can only take more than this if you agree (see Discontinuous leave requests, below).

The employee can change or cancel a booking notice by giving a further notice (at least eight weeks in advance), but this notice will also count as one of their three booking notices unless you agree otherwise. The “three notices rule” limits the employee’s ability to chop and change their plans, and encourages forward planning: it will be in the employee’s interests to discuss plans with you, with their partner and their partner’s employer well in advance of submitting any notices.

Discontinuous leave requests

An employee who wishes to take more than three separate periods of leave will need your permission to do this. They will have to request “discontinuous leave” in one of their booking notices. This could cover any conceivable pattern of leave (provided leave is taken in blocks of whole numbers of weeks). It could be something simple, like requesting two 12-week periods of leave, separated by a period of 4 weeks at work. Or it could be something more complex like working a week on and a week off repeatedly for 26 weeks.

As an employer, you do not have to accept such a request. Once the notice is submitted you will have a two week discussion period to try and reach agreement over a pattern of leave that would work. Bear in mind that during this time they may need to discuss the options with their partner (who may also need to discuss options with their employer). For this reason, it is worth encouraging employees to discuss their proposed patterns of leave with you as early as possible and agree them in principle before submitting a booking notice.

If you can’t agree after two weeks, then the employee has two options:

  •  Take the full amount of leave as a single unbroken period. They can either start this on the earliest start date specified in the booking notice, or on another date chosen by them. The date chosen must be at least eight weeks after they gave you the booking notice and they must notify you of the date no more than five days after the end of the two-week discussion period.
  •  Withdraw their request. If they do this within two days of the end of the two-week discussion period it will not count against their entitlement to three booking notices. They may then submit a new request.
Confirming it all in writing

Once an employee has booked their SPL, you don’t have any formal obligation to confirm it in writing, but it will help avoid confusion if you do so, especially where you have agreed a specific pattern of discontinuous leave.

SPLIT days: a flexible solution

If this isn’t complicated enough, there is also the option of the employee taking up to 20 SPLIT days (shared-parental-leave-in-touch days). These are similar to the 10 keeping-in-touch days (KIT days) that are available during maternity leave. SPLIT days enable the employee to come back to work for up to 20 days during their SPL without bringing the leave to an end. You might use SPLIT days for the employee to attend a training day or an important strategy meeting. Or you could use them creatively to create a more bespoke pattern of leave – for example, you could agree with your employee that they will work 2 days a week during the last 10 weeks of their SPL, to facilitate a “phased” return to work.

There are no fixed rules about payment for SPLIT days. As a general rule you should pay the employee their contractual hourly or daily rate for the hours worked. Where the employee is still in receipt of ShPP it becomes more complicated. The law says you can offset any contractual pay for the SPLIT day against any ShPP due for the week, but this may leave the employee with little or no financial benefit from coming into work. So some employers either pay contractual pay on top of ShPP, or allow the employee a paid day off in lieu at a later date. The important thing is to discuss it all in advance with your employee and agree how payment will be dealt with.

SPLIT days are entirely a matter for agreement – the employee cannot insist on them, you have no right to impose them, nor can you penalise an employee for refusing to agree to them. But they do create an additional flexibility where it suits both parties. There is no formal paperwork for booking SPLIT days, but it is helpful to set the arrangements out in writing to avoid misunderstandings.

 

Mark Tarran, Practical Law

© Thomson Reuters 2015

www.practicallaw.com/employment


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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