Shared parental leave (ShPL)
This section explains who is entitled to shared parental leave (ShPL), what the entitlement is to leave and the notice requirements that need to be given if parents would like to take shared parental leave.
What is shared parental leave?
As an overview, shared parental leave enables mothers or adopters to reduce the amount of statutory maternity leave or adoption leave they are entitled to take. The balance of that entitlement can either be taken by the mother or adopter, shared with the mother or adopter’s partner or taken solely by the mother or adopter’s partner. In contrast to maternity leave and adoption leave, ShPL does not have to be taken in one go; it can be taken either as a continuous period of leave or in a series of blocks of leave.
A mother and partner can choose to take the leave together to jointly care for the child or the can choose to take the leave at different times. Alternatively, a mother may still benefit from taking shared maternity leave herself even if her partner does not take any ShPL, as it will allow her to return to work after cutting short her maternity leave and take further blocks of leave as ShPL.
Both birth parents and adopted parents have similar ShPL rights. In this guide we use mother (for the mother and similar rights apply for the elected adopter) and we refer to partner for the father of the child or the partner, civil partner, spouse of the mother/adopter.
ShPL applies to same sex couples also. References to the partner or adopter can be male or female.
Who does ShPL apply to?
ShPL is an entitlement that applies in respect of children placed for adoption, or due to be born, on or after 5 April 2015.
An employee who is either the mother of the relevant child or the father of the relevant child or the person who is married to, in a civil partnership with, or the partner living with the mother of the child in an enduring relationship) is entitled to take Share Parental Leave (ShPL) if they meet the relevant criteria.
ShPL also applies to employees with adopted children. Where two people adopt a child one can elect to be the adopter for the purpose of ShPL. Both the adopter and the person who is married to or the civil partner or partner of the adopter at the time of the adoption) are entitled to take ShPL if they meet the qualifying criteria.
Both birth parents and adopted parents have similar ShPL rights. In this guide we use mother (for the mother and similar rights apply for the elected adopter) and we refer to partner for the father of the child or the partner, civil partner, spouse of the mother/adopter.
Additionally a mother who is not entitled to maternity leave (e.g. an agency worker engaged on a contract for services) but who is entitled to statutory maternity pay (SMP) can cut short the period that her SMP is paid. The remainder of the maternity pay period can then be taken as ShPL by the partner provided that the mother cuts short the period that the maternity pay or allowance is paid for.
How much ShPL can be taken?
Where the mother is entitled to Statutory Maternity (SML), the amount of ShPL that can be taken is the balance of the SML leave that the mother does not take. She must take at least two weeks of SML (four weeks if she works in certain factory roles). SML amounts to a total of 52 weeks. If a mother decides to take 30 weeks of SML and cuts short the rest, this leaves a balance of 22 weeks which can be taken as ShPL. This could, for example, then be split between the mother (10 weeks) and the partner (12 weeks). The mother and partner can choose whether to take their respective 10 and 12 weeks entitlement in one go or broken up into smaller periods. They can choose to overlap their ShPL to spend time together caring for the child or take it at different times.
Alternatively the mother could decide to take the entire balance (22 weeks) herself as ShPL which would mean that the leave could be broken up into separate blocks rather than being taken in one go.
If the mother is not an employee, meaning that she is not entitled to SML, the amount of ShPL will be 52 weeks less the number of weeks of SMP paid to mother (if she qualifies for SMP) or less the number of weeks of Maternity Allowance if she does not qualify for SMP. So, for example, if the mother decides to cut short her SMP and only receives payment for six weeks, the remaining 46 weeks (52 – 6) can be taken as ShPL by the partner. Note that she must take at least two weeks of SMP or maternity allowance, as applicable.
Although ShPL can be taken in blocks of leave, the minimum period of leave that must be taken is one week.
When must ShPL be taken by?
All ShPL must be taken by the day before the first birthday of the child or by the day before the first anniversary of the placement of a child for adoption.
All shared parental leave must be taken in complete weeks.
What conditions must an employee meet in order to be entitled to take ShPL?
Conditions for the mother
The mother must:
- Satisfy the continuity of employment test;
- Have the main responsibility to care for the child (apart from the partner);
- Be entitled to statutory maternity leave;
- End (curtail) any entitlement to SML by giving the proper notice or returning to work
- Give the correct notice to take the ShPL; and
- Provide the required evidence to her employer of her entitlement to take ShPL.
In addition, the partner must:
- Satisfy the employment and earnings criteria; and
- Have the main responsibility to care for the child (apart from the mother).
Conditions for the partner
The partner must:
- Satisfy the continuity of employment test;
- Have the main responsibility to care for the child (apart from the mother);
- Give the correct notice to take the ShPL; and
- Provide the required evidence to her employer of their entitlement to take ShPL.
In addition, the mother must:
- Satisfy the employment and earnings criteria;
- Have the main responsibility to care for the child (apart from the partner); and
- Be entitled to statutory maternity leave, SMP or maternity allowance.
The mother must cut short the period of maternity leave orhttps://rec.uk.com/index.php?cID=5173 SMP or maternity allowance that she is entitled to in accordance with the regulations.
What is the continuity of employment test?
The mother/partner must have been employed continuously for 26 weeks prior to the qualifying week (which is the 15th week before the baby’s due date). The mother/partner must still be employed at the date that the ShPL is due to start. However there is flexibility if the child is born earlier than this as this condition is still met if the mother/partner is still employed a week before the birth. The mother/partner must be an employee (engaged under a contract of employment).
What are the employment and earnings criteria?
The mother/partner must either have been engaged as an ‘employed earner’ or self-employed earner for a period of 26 weeks in the 66 week period leading up to either the expected birth of the child or date of the adoption match. Over that period the mother/partner must earn an average of the specified minimum amount over thirteen of those weeks. The highest paid 13 weeks are used to work out the average. The 26 weeks do not have to be worked continuously.
Note that the mother/partner does not have to be an employee to satisfy the employment and earnings criteria. This means that, for example, an agency worker engaged on a contract for services or self-employed person can also meet the criteria and this will allow the other parent (who meets the mother/partner criteria as applicable) to take ShPL.
The Department for Business, Innovation and Skills (BIS) has developed a Shared Parental Pay and Leave calculator which can be used by employees to determine whether they are eligible for shared parental leave and how much shared parental pay they are entitled to.
How does the mother request ShPL?
The mother must curtail her SML; See Shared parental leave.
There are two notices that the mother needs to give in order to take ShPL although these can be given at the same time. The first is a notice of entitlement and intention to take ShPL which, as its name suggests gives the employer information that confirms the employee’s entitlement to take ShPL. The second notice is a period of leave notice which is the request to book a specific period of leave.
The mother must give her employer a notice of entitlement and intention to take ShPL at least 8 weeks before the date that the first period of parental leave will start which contains the following information:
- Her name;
- The partner’s name;
- The start and end date of any SML she has taken or intends to take;
- The child’s expected week of birth and the child’s date of birth (if the notice is given before the birth the mother must give the employer the child’s date of birth as soon as reasonably practicable after the birth, but at the very latest, before the first period of ShPL is taken;
- The total amount of ShPL available and how how many weeks of ShPL she and the partner intends to take (i.e. how the leave will be split it between her and the partner); and
- An indication of when the mother intends to take ShPL including start and end dates for each period of leave.
She must provide the employer with her own signed declaration confirming that:
- She satisfies the conditions required to be entitled to take ShPL;
- The information she has provided is accurate; and
- That she will inform her employer is she ceases to care for the child the ShPL relates to.
Additionally the mother must also provide her employer with a written declaration from the partner of the following:
- The partner’s name, address and National Insurance (NI) number (or declaration that there is no NI number if this is the case);
- That the partner satisfies or will satisfy the ShPL conditions for the partner;
- That the partner is the father of the child or the spouse, civil partner or partner of the mother;
- That the partner consents to the amount of ShPL the mother intends to take; and
- That the partner consents to the mother’s employer processing the information in his declaration (this is for the purpose of the Data Protection Act 1998).
The Advisory, Conciliation and Arbitration Service (ACAS) have developed standard template letters which can be used by parents applying for ShPL.
Note that the period that the partner indicates that he or she will take parental leave is not binding and can be varied by the partner without limit.
How does the partner request ShPL?
There are two notices that the partner needs to give in order to take ShPL although these can be given at the same time. The first is a notice of entitlement and intention to take ShPL which, as its name suggests gives the employer information that confirms the employee’s entitlement to take ShPL. The second notice is a period of leave notice which is the request to book a specific period of leave.
The partner must give his employer a notice of entitlement and intention to take ShPL at least 8 weeks before the date that the first period of parental leave will start which contains the following information:
- The partner’s name;
- The mother’s name;
- The start and end dates of any:
a) Period of SML the mother has taken or intends to take;
b) Period that SMP or maternity allowance is received or to be received by the mother if she does not take SML - e.g. an agency worker engaged on a contract for services who is not entitled to SML.
- The child’s expected week of birth and the child’s date of birth (if the notice is given before the birth the partner must give the employer the child’s date of birth as soon as reasonably practicable after the birth, but at the very latest, before the first period of ShPL is taken;
- The total amount of ShPL available and how this will be split between the partner and the mother; and
- An indication of when the partner intends to take ShPL including start and end dates for each period of leave.
The partner must provide the employer with his/her own signed declaration confirming that:
- The partner satisfies the conditions required to be entitled to take ShPL;
- The information the partner has provided is accurate;
- The partner is the father of the child or the spouse, civil partner or partner of the mother; and
- The partner will inform the partner’s employer if the partner ceases to care for the child the ShPL relates to or if the mother informs the partner that she has not cut short her SML, or SMP or maternity allowance, where applicable.
Additionally the partner must also provide his/her employer with a written declaration from the mother of the following:
- The mother’s name, address and National Insurance (NI) number (or declaration that there is no NI number if this is the case);
- That the mother satisfies or will satisfy the ShPL conditions for the mother;
- That the mother consents to the amount of ShPL the partner intends to take.
- That the mother will immediately inform the partner if she has no longer cut short ShPL (or returns to work before the end of her SML if she did not originally cut this short) or where she has no longer cut short her SMP or maternity allowance; and
- That the mother consents to the partner’s employer processing the information in her declaration (this is for the purpose of the Data Protection Act 1998).
The Advisory, Conciliation and Arbitration Service (ACAS) have developed standard template letters which can be used by parents applying for ShPL.
Note that the period that the partner indicates that he or she will take parental leave is not binding and can be varied by the partner without limit.
Period of leave notice
An employee (mother or partner) is required to serve a period of leave notice on the employer at least eight weeks prior to the first period of ShPL he or she intends to take. This can be served together with (but not before) the notice of entitlement and intention to take ShPL.
This must set out the start and end dates of each period of ShPL the employee intends to take.
The Advisory, Conciliation and Arbitration Service (ACAS) have developed standard template letters which can be used by parents applying for ShPL.
Can the employer request any additional evidence of the entitlement to ShPL?
Yes, although not required, an employer is entitled to ask it’s employee (the mother or partner who is applying for ShPL) to provide a copy of the child’s birth certificate and the name and address of the other parent’s employer. This must generally be provided within 14 days of the date of the request if the employer asks for this after the birth or within 14 days of the birth if the employer asks for this.
How does a mother or adopter curtail statutory maternity leave or adoption leave?
A mother is required to cut short her maternity leave in order to create ShPL which can then be taken by her and/or her partner. This is referred to as curtailing the maternity leave.
Neither parent is entitled to take ShPL unless the mother’s maternity leave has been curtailed.
The mother can curtail her maternity leave by:
- Returning to work; or
- Giving her employer a written notice which gives the date that her maternity leave will end (the date must be at least 8 weeks after the date she gives the notice). See 'Giving notice to curtail maternity leave' below.
An adopter can curtail adoption leave in a similar way.
A mother cannot curtail the compulsory maternity leave period i.e. the period that she must by law take as maternity leave. This is ordinarily two weeks, but four weeks for women working in certain factory roles. An adopter cannot curtail the first two weeks of adoption leave.
This means that in all cases the mother or adopter must take at least two weeks of maternity/adoption leave (four weeks for mothers in certain factory roles). In reality then, a maximum of 50 weeks of ShPL can be created (48 weeks if the mother works in a factory role).
Giving notice to curtail maternity leave/adoption
The mother/adopter must take the first two weeks of maternity leave/adoption leave (or four weeks for mother’s working in certain factory jobs who must take 4 weeks compulsory leave following the birth of the child).
The following sets out the notice procedure that a mother must follow but this is similar to the procedure to be followed by an adopter.
The mother must give her employer a leave curtailment notice. This notice must set out the date on which her ordinary or additional maternity leave is to end. That date given must be at least 8 weeks after the date that the mother gives the notice to her employer and must be after the compulsory maternity leave period (two weeks after the date the baby is born of four weeks for certain factory roles).
Along with the leave curtailment notice, the mother must also give her employer:
- A notice of entitlement and intention to take ShPL (How does the mother request ShPL); or
- A declaration of consent and entitlement (i.e. the mother must give her employer notice that her partner has given his/her employer a notice of entitlement and intention to take ShPL (How does the partner request ShPL) and she (the mother) must confirm to her employer that she consents to the period of the leave that her partner intends to take.
The Advisory, Conciliation and Arbitration Service (ACAS) have developed standard template letters which can be used by parents applying for ShPL.
When can ShPL be taken?
ShPL can be taken any time from date that the child is born but must all be taken by the day before the child’s first birthday (or the day before the one year anniversary of the date the child is placed for adoption, where applicable). Where the mother is required by law to take either two weeks of compulsory maternity leave (or four weeks for certain factory roles), the ShPL can only begin after that compulsory leave is taken. An adopting parent must take at least two weeks of adoption leave and a worker who is not entitled to maternity leave cannot convert the first two weeks of statutory maternity pay/maternity allowance to ShPL. The ShPL can either be taken in one go or a series of blocks, the minimum period of ShPL that can be taken is one week.
ShPL can only start if the mother has cut short her SML or SMP if she is not entitled to SML. This occurs when the mother either returns to work, ending her maternity leave or pay, or gives a specific notice to her employer of the date in the future that her maternity leave (or pay where applicable) will end.
How should requests for ShPL be managed?
As set out above, ShPL can either be taken as one continuous period of leave or in a series of blocks. There is an absolute entitlement to take ShPL as a continuous period of leave so if the employee requests one single period of ShPL, he or she will automatically be entitled to take it.
However where the request is for ShPL to be taken as a series of blocks then the request must be considered and agreed by the employer, although by default if the employer does not respond to the request within the required period, the mother/partner will be entitled to take the ShPL.
ACAS have series of standard template letters relating to ShPL which include a letter that employers can use to respond to a request for ShPL.
How should an employer deal with a request for ShPL to be taken in separate blocks?
If an employer receives a notice for ShPL to be taken in blocks, the employer can:
- Agree to the leave;
- Propose alternative dates for the leave (if they are not suitable); or
- Refuse the request.
If the employer does not respond at all within two weeks from when the notice was given, the employee will be entitled to take the ShPL requested as one continuous period rather than in blocks. The employee can either request a specific start date (which must be at least eight weeks from the date the employee gave the employer the notice) or failing which the ShPL will start on the original start date the employee gave in the request notice.
Example
An employee gives his employer notice that he wants to take two periods of ShPL of two weeks each with the first running from 5 - 18 May and the second running from 4 – 17 June.
If no agreement is reached with the employer, the employee will be entitled to take 4 weeks of leave in one go. If the employer notifies the employer of the start date, that date will apply. If not, then the employee’s ShPL will commence on 5 May for four weeks.
Alternatively, if the employee does not wish to take that leave, the employee can change his/her mind by withdrawing the notice but this must be withdrawn within 15 days after the original notice for leave was given to the employer.
How many times can an employee give notice to their employer to take ShPL?
An employee can make a maximum of three requests to their employer to take ShPL, however the employer is free to allow the employee to make more requests. Some requests that the employee makes will not reduce the number of leave requests that the employee can take. For example, where the employee has withdrawn a notice to take discontinuous leave because the employer did not respond within two weeks (see How should an employer deal with a request for ShPL to be taken in separate blocks?), this will not count as one the employees three requests.
Can the ShPL dates be varied?
Yes. Where the employee has given notice to either take a continuous period of ShPL or blocks of ShPL the employee can give notice to his/her employer to change those dates in the following ways:
- Change the start or end date of a period of ShPL (the employer must give at least 8 week notice from the date of the original leave and the varied date);
- Change a continuous period of leave into a series of blocks of leave or vice versa;
- Vary the amount of leave to be taken as long as the notice is given at least eight weeks before the varied start date. The employer can also cancel the leave.
The employee must give the employer a notice to vary the ShPL. If the employee gives notice to vary leave at the request of the employer, this notice will not count as one of the three requests for ShPL that the employee is entitled to make.
Can employees work while taking ShPL?
Yes, the mother and Partner will each be entitled to 20 days work while taking ShPL without bringing the ShPL to an end. These days are referred to as Shared Parental Leave Keeping in Touch days (SPLiT days). These are similar to the 10 Keeping in Touch days (KIT days) that employees are entitled to take when on maternity leave. If the employee does any work for his or her employer in a day, even if for only part of the day this will count as one of the 20 days. These days can be used to come in for training, keeping in touch with the workplace or actually carrying out work.
There is no obligation for the employee to come into work, so use of SPLiT days should be agreed between the employer and employee.
Are employees entitled to payment for SPLiT days?
The ShPL provisions do not specifically state that an employee is entitled to be paid during SPLiT days. However any entitlement to shared parental pay (ShPP) will continue during SPLiT days. Employers should also bear in mind that where the employee carries out any work while on a SPLiT day, the obligation to comply with National Minimum Wage (NMW) legislation still applies and the employee will be entitled to receive at least NMW. Aside from this it is best practice for the employer and employee to agree applicable rates of pay for any SPLiT days.
What other rights does an employee have in relation to ShPL?
There are many similarities between the rights that employees already have in relation to maternity and paternity that employers will be familiar with.
Contract terms continue
Employees retain the benefits of the terms and conditions of their employment and will continue to be bound by those terms and conditions while taking ShPL. One exception to this is that employees are not entitled to receive their normal salary during ShPL. The employee may be entitled to ShPL during this period.
Holiday
Employees will continue to accrue statutory holiday while on ShPL.
Right to return to work from ShPL
Employees will be entitled to return to the same job after taking ShPL, provided that the total period of ShPL leave taken together with other relevant leave (which in addition to ShPL includes maternity, paternity, adoption leave) is no more than 26 weeks.
If the period of leave that the employee takes is more than 26 weeks or the employee has taken back to back relevant leave including parental leave which exceeds four weeks, the employee will be entitled to return to the same job unless it is no longer reasonably practicable for the employee to return to that job. In this case the employee will be entitled to return to another job which is suitable for the employee and appropriate for the employee to do in all the circumstances.
What protections does an employee have in relation to ShPL?
Right not to suffer a detriment
Employees are protected from suffering any detriment because they have taken, plan to or try to take ShPL or if the employer thinks that they will take ShPL. Additionally the employee is protected from any detriment that arises if he or she refuses a request from the employer to do work as part of a SPLiT day.
Protection from unfair dismissal
Note that the protection from unfair dismissal applies to all employees from the start of their employment even if they do not have two years service.
An employee will be regarded as being unfairly dismissed from employment if they are dismissed in connection with the following reasons:
- They have taken ShPL/they sought to take ShPL or their employer believed that they were likely to take ShPL; or
- They considered taking a SPLiT day or refused to do work on a SPLiT day.
An employee who is made redundant having been selected for redundancy for any of the above reasons will also be regarded as being unfairly dismissed.
Redundancy and ShPL
If, during an employee’s ShPL a redundancy situation arises, which means that it is no longer reasonably practicable for the employee to continue to do the work he or she was doing under the contract of employment return to same role that, the employer must take specific steps.
If there is a suitable alternative vacancy, the employer must offer this to employee before the contract that the employee had been employed on comes to an end. The alternative work offered to the employee must be:
- Of a kind that is suitable to the employee and appropriate for the employee to do in all the circumstances; and
- The provisions relating to the capacity and the place where the employee will be employed and the terms and conditions relating to the position must not be substantially less favourable.
How should notices be given for ShPL and ShPP?
Where there is a requirement for any person to give notice in relation to ShPL or ShPP it must be done in writing and either given:
- By post;
- Personal delivery (by hand); or
- Electronically (e.g. by e-mail) where agreed by the person receiving it.
Any notice sent by post (in a properly addressed and stamped envelope) will be taken to have been given on the day the notice is posted. Any notice given by hand be taken to have been given on the date it is delivered and any notice sent electronically will be taken to have been given on the date it is transmitted.
Disclaimer
This information is for guidance purposes only and should not be regarded as a substitute for taking legal advice. Please refer to the full terms and conditions on our website.