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Is there any change to maternity and paternity leave and pay?
The shared parental leave system did not make any change to maternity leave, paternity leave, statutory maternity pay or maternity allowance. The difference is that the mother gives up part of her entitlement to maternity leave and/or pay so that she and/or her partner can take SPL and/or shared parental pay.
What are the main qualifying “tests” to qualify for SPL?
We refer to two tests in this factsheet. An employee can only take SPL if s/he satisfied the continuity of employment test. The partner must also be a worker (as SPL is for working parents) so must satisfy the employment and earnings test.
- The continuity of employment test: the employee must have worked for the same employer for 26 weeks at the end of the 15thweek before the EWC (expected week of childbirth) and remain employed until the week before the start of SPL
- The employment and earnings test: the partner must have worked on an employed or self-employed basis in 26 of the last 66 weeks earning at least £30 per week on average for 13 of those weeks.
When can the partner (P) take SPL?
A partner (P) is entitled to SPL if:
- P is an employee
- P satisfies the continuity of employmenttest
- P is still employed in the week before any SPL is due to start;
- M is entitled to maternity leave, SMP or maternity allowance
- M satisfied the employment and earnings test
- If M is entitled to maternity leave she cuts short her leave
- If M is entitled to SMP or maternity allowance (not maternity leave), she has curtailed the maternity pay or maternity allowance period
- M has, at the date of birth, shared responsibility for the baby with the partner;
- The required notice, declarations and evidence are provided by P and M.
Remember: If one parent is not entitled to SPL (eg because she is not an employee) the other partner may still be entitled to take it if s/he is employed.
Key points on entitlement to SPL
Sharing leave is only possible if both partners satisfy certain conditions
An employed mother can take SPL if she is entitled to statutory maternity leave and has sufficient continuous service
An employed partner can take SPL if the mother is entitled to either maternity leave, SMP or MA, provided s/he has sufficient continuous service. So s/he may be entitled to SPL even though the mother cannot get either maternity leave or SPL
Note: It is possible for only one of a couple to take SPL provided both satisfy the qualifying tests.
What if the father is an employee but the mother is self-employed?
The mother cannot take SPL because she is not employed. If the mother qualifies for maternity allowance, she can shorten this, and give her partner access to shared parental leave if he is employed and complies with the continuity of employment test.
An example The mother is a self-employed worker who satisfies the employment and earnings test and is eligible for maternity allowance. Her partner is an employee who satisfies the continuity of employment test. The mother is not entitled to SPL because she is self-employed. But, if she shortens her maternity allowance (ie gives some of the 39 weeks up) her partner can take up to 50 weeks SPL. The amount of SPL he can take is calculated by deducting from 52 weeks the number of weeks’ SMP or MA claimed. This also applies if the mother was entitled to SMP not maternity leave.
How much SPL can be taken?
It depends on how much leave or pay the mother gives up in order to create SPL. If she shortens her maternity leave by 12 weeks, she and her partner can take, between them, the remaining 38 weeks as SPL. It is for the parents to decide how to share SPL.
Note the 50 weeks includes any maternity leave taken before the birth, but not the 2 weeks of compulsory leave immediately after the birth, which the mother must take.
Can SPL be taken for a few days at a time?
No, it cannot be taken for less than one week at a time and it must be taken in multiples of a week, though it may start mid-week. For example, an employee cannot take one week and 3 days. The employee could work some SPLIT days on one of the other days if the employer agrees.
Who counts as a partner?
- The child’s biological father
- The partner of the mother or adopter (who may be a spouse or civil partner) or the partner living in an enduring relationship with the mother/adopter and child; ‘partner’ excludes most relatives.
Note: entitlement is for the father of the child (C) or spouse/partner (P) ‘at the date of birth’.
When can a mother (M) take SPL?
The mother (M) qualifies for SPL if:
- M is an employee
- M is entitled to statutory maternity leave
- M has worked for the same employer for 26 weeks at the end of the 15thweek before the child’s expected due date, (continuity of employment test)
- M remains employed in the week before any SPL is due to start;
- M has shortened her maternity leave by returning to work or providing a notice to curtail the leave
- M has a partner who meets the employment and earnings test
- P has, at the date of the birth, shared responsibility for the baby with M.
- The required notice, declarations and evidence are provided by M and P
What if the mother is an employee but the father is self-employed?
The father will not be able to take SPL as he is not employed; the mother can take it if the father satisfied the Employment and earnings test, (ie has worked in 26 of the last 66 weeks earning at least £30 per week on average for 13 of those weeks).
What about agency workers?
Agency workers who are entitled to SMP or paternity pay are not eligible for SPL but their employed partner may be. If the agency worker satisfies the employment and earnings test, their employee partner can take SPL. Agency workers may be entitled to shared parental pay. This could apply to other atypical workers such as casuals, those on a zero hour’s contract and some freelance contractors who are not self-employed.
If an employee works during SPL does that reduce the amount of leave?
Apart from SPLIT days (see below) working in between periods of SPL reduces the time within which SPL can be taken, unless the partner takes SPL when their partner is working. If both are working, the period in which SPL can be taken is reduced by the weeks worked, because SPL has to be taken in the first year. For example, if an employee returns to work for 12 weeks and her partner is not on SPL during that period, the time they have left in which to take the SPL available to both of them is reduced by 12 weeks.
Do the parents have to agree about how much SPL each will take?
Yes. Neither parent can take SPL unless the other has signed a declaration agreeing to the division of leave.
| Main advantages of SPL over maternity leave
Are there any disadvantages in SPL for women entitled to maternity leave/pay?
The Equality Act only protects women from unfavourable treatment for taking maternity leave, not shared parental leave. Employees must not be treated badly or dismissed for taking SPL but the protection from discrimination is not as strong for a woman as it is when she is on maternity leave
If the employer pays enhanced maternity pay to women on maternity leave but does not pay enhanced shared parental pay, the mother would lose that extra enhanced maternity pay if she moved on to shared parental leave before the end of the enhanced maternity pay period.
If an employee is made redundant on maternity leave she remains entitled to SMP/MA for the remaining 39 weeks unless she starts a new job. She will only continue to be entitled to ShPP if she has booked it for the full period. It does not automatically continue to be payable like SMP.
The right to return to the same job applies to employees who take 26 weeks ordinary maternity leave. Employees returning from a period of SPL have the right to return to the same job if they take 26 weeks or less in aggregate (including any maternity, paternity, shared parental leave). This could lead to employees (mothers or fathers) who combine maternity/paternity leave with SPL losing this stronger protection despite taking quite short individual periods of leave.
For example, if an employee takes 12 weeks maternity leave, returns to work for 4 weeks, then takes 15 weeks SPL, s/he is treated as returning after more than 26 weeks, so that the employer can offer a suitable alternative job if it is not reasonably practical for the employee to return to the same job.
Note: if an employee works in between taking periods of SPL, her right to return from SPL is to the job she was last doing (before the most recent period of SPL), not the job she was doing before the start of maternity leave. The same applies to employees taking SPL