Shared Parental Leave: Your Rights

Andrew Boast
31/03/2022
2
4 min read
Shared Parental Leave: Your Rights explained by Employment Law Friend
Shared parental leave was introduced primarily to enable mothers in the first year of their babies birth to end maternity leave early and to take shared leave with their partner in a more flexible way.

It also applies to parents who are expecting a baby via surrogate or who are adopting (within the first year of adoption).

If a couple (who can be same sex and need not be married) are eligible for shared maternity leave, then they can claim up to 50 weeks of leave and up to 37 weeks of pay, provide they both meet the eligibility criteria for this.

Can mother and father take shared parental leave at the same time?

Shared parental leave is designed to be very flexible. It is therefore possible for the mother (or primary care giver in the case of surrogacy or adoption) to return to work early after maternity leave and take shared leave later, or for her partner to then take shared maternity leave whilst she works, or for both parents to take it at the same time either immediately after birth, or at a later period within 12 months. The whole point is to provide ultimate flexibility for parents.

How does shared parental leave and pay work?

In order to take shared leave the mother or primary care giver must provide their employer with a Notice of Entitlement Form, which details when they want to take shared paternity leave and that the parents share responsibility for the child, among other things.

The mother is still required to take two weeks maternity leave by law, or four weeks if she works in a factory, but this form can be filled in in advance of birth and the compulsory parts of maternity leave.

Can your employer refuse shared parental leave?

Providing the shared parental leave is taken in blocks of weeks and the employer is given eight weeks notice of when the employee proposes to take the leave, then the employee is entitled to this leave (subject to meeting the general eligibility criteria set out by the Government), and the employer cannot refuse it.

This arises from the fact that this is a flexible alternative to maternity leave, which an employer would of course not be able to refuse.

There is a more flexible type of shared maternity leave called discontinuous leave which involves taking odd days off, and in those circumstances the employer can refuse (although of course the employee can still take the usual continuous leave instead).

How much do you get paid for shared parental leave?

Whilst taking shared paternity leave, both parents get paid the lower of £151.97 per week or 90% of your salary.

There is a Government tool to help you calculate what you would be entitled to. Other than your pay, all your usual terms and conditions of employment remain in place, and it is unlawful for an employer to treat you unfairly in any way (for example negative comments, passed over for promotion, not provided with annual pay rise etc) because you are going to be taking, are taking, or have taken shared leave.

Annual leave continues to accrue whilst you are taking shared maternity leave, and some parents choose to mix shared leave with annual leave, during which they receive their usual pay, in order to make this more affordable.

For example, if Dad takes two months shared leave, then 3 weeks annual leave then a further month on shared leave, he would receive the lower of £151.97 per week or 90% of this salary for the first two months, his usual salary for the middle three weeks, and the same shared paternity leave amount for the final month.

Shared maternity leave and shared parental pay can be complex, and the above is a brief summary only setting out entitlements to this. Find out ore from GOV.UK and ACAS for more information about how this operates.

Can I sue my employer over shared parental leave?

There are a variety of claims that might arise out of a request for, or the taking of, shared maternity leave.

Example 1:
An employer treating someone unfavourably because they had taken leave, which can often arise in situations where someone is not in the office and so not “seen”.

This might include annual appraisals which lead to a salary increase, or being considered fairly in a pool situation as a part of a redundancy exercise, perhaps if you missed training whilst you were away on leave.

Example 2:
Someone on a fixed term contract takes shared parental leave, and the contract is not extended.

If the reason for that is that they have taken parental leave or are currently taking it, then that would be unlawful unfavourable treatment.

It is unfortunately the case that men requesting shared leave are more likely to be treated unfavourably than women making such requests, and this can often lead to a sex discrimination claim too.


Do you have a problem with your shared parental pay?

If your employer is refusing to grant your statutory or contractual shared parental leave, get in contact with us and see how we can help.

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This content is provided free of charge for information purposes only. It does not constitute legal advice and should not be relied on as such. No responsibility for the accuracy and/or correctness of the information and commentary set out in the article, or for any consequences of relying on it, is assumed or accepted by any member of our company. For employment law advice please get in contact and speak to your employment law solicitors.
 
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