Following last year's consultation on the proposed new system of shared parental leave and pay, BIS is now seeking views on the recently published draft regulations. The shared parental leave regime encompasses three sets of draft Regulations (covering pay, leave and the curtailment of statutory maternity/adoption leave) which can be found here.
Reading the draft Regulations is not for the faint-hearted (the first two sets run to 36 and 29 pages respectively). In particular, the Regulations covering shared parental leave contain some bizarrely complicated provisions regarding the notification/request requirements. There is currently a concern amongst practitioners that the complex rules might make it difficult for both employers and employees to comply – without a simple set of instructions/forms to complete. It remains to be seen whether the Government will produce such forms or whether employers will need to do some of the work. The fact that the Government is yet again consulting on this issue is rather odd, but it may well share some of the concerns over the complexity of the regime.
A summary of the key points is set out below.
The introduction of shared parental leave comes as a new right alongside the overhaul of flexible working envisaged by the Children and Families Bill. The Bill, which is due to receive Royal Assent on 21 March, will allow the Secretary of State to endorse regulations relating to the new system of shared parental leave and pay. The new Regulations are due to come into force on 1 October 2014 and for children expected to be born or placed for adoption on or after 5 April 2015, eligible employed parents will be jointly entitled to a maximum of 52 weeks' leave and 39 weeks' statutory pay, which can be shared between them.
Eligibility to share time off to care
The option of sharing parental leave is only available to employees who have 26 weeks' continuous employment at the 'relevant date' (the end of the 15th week before the Expected Week of Childbirth ('EWC') or the week they are notified of an adoption match). The system applies to a biological/adoptive mother and the child's biological/adoptive father, the mother's husband, partner or civil partner, and may be taken from the date of birth/placement for adoption up to 52 weeks from that date.
Parental leave may only commence once a mother who is entitled to statutory maternity leave has brought that leave to an end; meaning that the period available for shared parental leave is 52 weeks minus the period that the mother has spent on maternity leave or in receipt of Statutory Maternity Pay or Maternity Allowance. Parents will be able to take the leave together, so that the mother need not necessarily return to work after taking maternity leave. Alternatively, the mother could return to work and allow her partner/the child's father to take the balance of leave, or the parents could take the leave in turns.
Requirements and rights under the regulations
Under the new statutory procedure, each employee will be required to give to their employer a non-binding written indication of the intended period (or discontinuous periods) of parental leave, and to include certain specified information and declarations. At least eight weeks' notice will be required. Where requested by the employer, the employee may also be required to submit evidence of their entitlement. The employer can agree to the request, propose alternative dates or refuse the request altogether, in which case the employee will be entitled to one continuous period of leave.
The entitlement to 'Keeping in Touch' ('KIT') days will be extended to a maximum of 20 per parent. Any days already taken by the mother during her period of maternity leave will be included in her total KIT entitlement.
In line with the current provisions on maternity, paternity and adoption leave, the regulations will afford employees taking parental leave the right to return to the same job upon their return, their full terms and conditions of employment (except normal salary), and protection from detriment and dismissal.
It will be interesting to see the response to the consultation. As highlighted above, critics of the scheme in particular are concerned that the notification/request requirements are unduly complex. In addition, there is some concern that the scheme could be open to abuse. What is clear is that detailed guidance (and draft forms) will be necessary to assist employers in the practical implementation of the new rights. So watch this space….