If you are having a baby, you may wish to take advantage of the new shared parental leave system. This article guides you through the procedure for when you return to work following a period of shared parental leave, and the consequences if you either do not want to return to work or your job no longer exists.
For information on the basics of shared parental leave – including who is entitled, how much leave you 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 you wish to take shared parental leave see Shared Parental Leave: Process and Paperwork.
Returning to work after SPL – General rule
In general, you have a right to return to the job in which you were employed before your absence. If you have taken more than one period of SPL, you have the right to return to the job you were doing before your first period of SPL.
However, this right is qualified. Your rights on return to work after taking SPL will depend on how much SPL you have taken, whether you have taken two or more consecutive periods of SPL, and whether you have taken maternity, paternity or adoption leave as well.
A refusal to allow you to return after SPL in accordance with the SPL Regulations may amount to a detriment or an unfair dismissal. More information about this will be published shortly in a factsheet on see Shared Parental Leave: Detriment, dismissal and discrimination.
Right to return to work to the same job
The right to return to the job in which you were employed before your absence means a right to return:
- With your 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 of your job would have changed had you 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 you are employed to do under your contract.
- The capacity and place in which you were employed before your absence.
You should note that if a change in tasks, hours or working methods could have been contractually required before your leave, this can still be required on return from leave or thereafter.
You are entitled to return to the job in which you were employed before your absence in the following circumstances:
- You have taken SPL plus relevant statutory leave totalling 26 weeks or less. (Relevant statutory leave includes shared parental leave, maternity leave, paternity leave and adoption leave. It does not include parental leave.)
- You have only taken SPL (i.e. no maternity or paternity leave as well) and your SPL totals 26 weeks or less.
If you have taken a total of more than 26 weeks’ leave then you will be entitled to return to another job (please see below).
Right to return to another job
In the following scenarios, an employer does not have to allow you to return to exactly the same job if it is not reasonably practicable. However, you will be entitled to return to another job which is both suitable for you and appropriate for you to do in the circumstances and with terms and conditions which are not less favourable than those which would have applied if you had not taken SPL:
- If you have 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 shared parental leave, maternity leave, paternity leave and adoption leave. It does not include parental leave.)
- If you return to work after a period of SPL which is more than 26 weeks.
- If you return 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. So this scenario is most relevant for partners who have taken SPL and more than 4 weeks of parental leave before the mother curtails maternity leave or maternity allowance.
Right to return – flexible working
If you are an employee with at least 26 weeks’ continuous employment, you have the right to make a request for flexible working for any reason which might include part-time hours, job-share, compressed working hours etc.
You should make any application as soon as possible in advance of your return date, so that there is adequate time for full consideration of the request.
You may engage the statutory flexible working procedure by making a written request. Your employer then has three months (which can be extended by agreement) within which to consider the request, discuss it with you (if appropriate) and notify you of the outcome. Your employer must deal with the application in a reasonable manner.
Only one request made in any 12-month period will engage the statutory procedure. However, there is nothing to prevent you from making additional informal requests but there is no obligation for your employer to follow the statutory procedure in response to an informal request for flexible working.
Not returning – redundancy
You do not have a right to return to the job in which you were employed before your absence where your role is genuinely redundant.
In those circumstances, where there is a suitable alternative vacancy with your employer, your employer’s successor, or an associated employer:
- You are entitled to be offered that suitable alternative role before the end of your existing contract. Your employer should not make this offer subject to any competitive assessment or interview. So, if the job is suitable and available, you have an absolute right to be offered that job ahead of any other candidates.
- If you are offered a suitable available job and you unreasonably refuse this offer, you may forfeit your right to a statutory redundancy payment. This will only be relevant if you have at least two years’ service with your employment.
- Your employment under a new contract of employment must take effect immediately on your previous contract coming to an end.
We will soon be publishing a factsheet dealing in more detail with what happens when your job becomes redundant during a period of SPL.
Not returning – resignation
If you wish to resign either during or after SPL, notice of your resignation must be given in the normal way. You are still required to give the notice period stated in your contract of employment or otherwise agreed.
If you resign during SPL and you are still entitled to sufficient SPL to cover the notice period, you are entitled to remain on SPL for the entirety of the notice period. However, if you resign after the end of a period of SPL or you lack sufficient SPL to take you to the end of your notice period, you must return to work for all or part of your notice period unless you take annual leave or sick leave or your employer has agreed with you that you may remain absent (garden leave) or that you may terminate your employment without giving the required notice.
You are not required to repay any Statutory Shared Parental Pay already received. You 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 also worth noting that you remain entitled to Statutory Shared Parental Pay for all your booked SPL, even if your employment terminates before you have been able to take your full entitlement to SPL. In this way, you would still be entitled to receive Statutory Shared Parental Pay after termination of your employment. However, if you start work with a new employer, you will lose this entitlement to Statutory Shared Parental Pay.
You may be required to repay any contractual Enhanced Shared Parental Pay, but this will depend on the terms of your contract which you should check with your employer.
© Rachel Crasnow QC, Claire McCann & Siân McKinley, Cloisters
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.