Overview

A very wide range of legislation governs maternity, paternity, shared parental and adoption leave and pay. Most of the relevant legislation can be found consolidated into the Employment Rights Act 1996 or the Employment Relations Act 1999. A full list of the relevant legislation is given at the end of these Q&As.

However, the Employment Act 2002, the Work and Families Act 2006, the Children and Families Act 2014, and numerous regulations have also brought in some significant changes.

GOV.UK provides guidance and interactive tools on maternity, paternity and adoption leave and pay.

In Northern Ireland, information on maternity, paternity, shared parental and adoption leave and pay is available from nidirect

Terminology

The terminology used in this area of employment law may cause confusion. The following terms are used in these Q&As:

  • Right to request flexible working – right to formally request more flexible working arrangements.

  • Unpaid parental leave – generally refers to the current right of up to 18 weeks’ extra unpaid leave (available in addition to the primary paid leave). See the Parental rights and family-friendly provisions Q&As.

  • EWC – Expected week of childbirth/week the baby is due. In these Q&As, the term ‘due’ is used where possible.

All relevant employees, regardless of their length of service or part-time or full-time status, qualify for maternity leave.

An employee who is the new mother of her biological child is therefore usually entitled to take:

  • 26 weeks’ ordinary maternity leave (OML); followed by
  • 26 weeks’ additional maternity leave (AML); and
  • she can choose to switch part of those 52 weeks of maternity leave into shared parental leave and pay, provided the parents satisfy the eligibility requirements;* and
  • up to four weeks’ unpaid parental leave if she chooses to take it at this stage rather than subsequently. Parents can take 18 weeks’ parental leave in total up to the child’s 18th birthday. For full details of parental leave, see Parental rights and family-friendly provisions Q&As.

Pregnant employees are also entitled to paid time off for antenatal care.

There are a number of important points about the way the leave periods work:

  • There is no qualifying period of employment for maternity leave. All pregnant employees qualify for a total of 52 weeks’ maternity leave.
  • Even women who were pregnant when they started working for their employer are entitled to maternity leave.
  • The employee can choose when the maternity leave will begin, but it cannot begin earlier than the start of the 11th week before the expected week of childbirth.
  • ‘Compulsory’ maternity leave is the period two weeks (four weeks for factory workers) immediately after giving birth, during which the woman is not permitted to work. This is part of the maternity leave period, not additional to it. It is discrimination and a criminal offence for an employer to permit a woman to work during these two weeks.
  • In most cases the mother’s partner will be entitled to up to two weeks’ statutory paternity leave and may also take shared parental leave (SPL).

*Although women are entitled to a possible 52 weeks’ maternity leave, some couples may choose to divide the period of leave entitlement between them. If the woman chooses to end her maternity leave early, statutory SPL and pay may be available to eligible parents.

The online calculator from the Department for Business, Energy & Industrial Strategy helps prospective parents to work out their maternity leave and entitlements.

Separate complex notification requirements apply for shared parental leave. See:

  • What are the qualification requirements for shared parental leave?
  • What are the notification requirements for shared parental leave?
  • What is curtailment of maternity leave and pay and how does it relate to shared parental leave?

Commencement of maternity leave

An employee must notify her employer of:

  • her intention to take maternity leave and
  • the start date of her leave.

This notice must be in writing if the employer requests it (see What statutory maternity pay must an employer pay?) and the notification must be no later than the end of the 15th week before the expected week of childbirth (the EWC).

Once an employer receives notice of the date on which an employee wishes to start her maternity leave, it should respond in writing within 28 days, setting out the expected date of her return.

An employee may change her mind about the date she intends to start maternity leave, provided she gives her employer the appropriate amount of notice.

An employer can trigger the period of maternity leave automatically if the employee is absent for pregnancy-related sickness four weeks before the EWC or, if childbirth occurs earlier, the maternity leave will start on the day after the child is born.

Return to work

A woman is not required to warn her employer if she intends to return to work the day after her maternity leave ends, but if she wishes to return to work before the end of the full maternity leave period she must give her employer eight weeks’ notice of her return date. The employer can accept reduced notice at its discretion.

If an employee attempts to return to work early and without giving the full eight weeks’ notice, the employer can essentially give itself eight weeks’ notice by postponing the employee’s leave, so long as the postponement date is not later than the end of the maternity leave period.

If the employer doesn’t provide appropriate notification of when the leave should end, the employee is no longer obliged to give eight weeks’ notice of her early return (see also What notice is an employee required to give to their employer if they do not intend returning to work after maternity leave?).

For parents whose babies were due on or after 5 April 2015 (and for those having children placed for adoption on or after that date), shared parental leave is available. For information on the notification requirements to be given to the father or partner’s employer and the mother’s or adopter’s certificate required in such cases, see:

  • What are the notification requirements for shared parental leave?
  • What notice is an employee required to give to their employer when taking paternity leave and to obtain statutory paternity pay?

Employee shareholders

Employee shareholder status applies to employees who have given up employment rights in return for shares (Employee status Q&As).

Yes, although legal complexities can arise.

Her rights depend on when she returns:

  • An employee returning to work after the first six months of leave is entitled to return to exactly the same job she was doing before her maternity leave.
  • An employee who returns to work after the second six months of leave is also entitled to return to exactly the same job, unless there is some reason why it is not reasonably practicable for the employer to take her back in that original job. If it is not reasonably practicable, the employee is still entitled to suitable alternative work on similar terms and conditions.

Similar rights apply in the context of paternity and adoption leave. An employee who stays off work without notice after her maternity leave has ended will lose the right to return to work. However, an employee may take unpaid parental leave, sick leave or annual leave at the end of her maternity leave.

Even if she is on maternity leave, the employee must be consulted about any proposed changes to her terms and conditions of employment.

If there is some reason why it is not reasonably practicable for an employee who has been on maternity leave to return to her original job after the second six months of leave, she is entitled to be offered alternative work. This work must:

  • be suitable and appropriate in the circumstances; and
  • have terms and conditions which are no less favourable to her than if she had continued to be employed in her old job.

It is risky for employers to move an employee into a different role while she is on maternity leave. Particular risks include:

  • If the employee is given a different job on her return to work, partly or wholly because of her being on maternity leave, this may be sex or maternity-related discrimination.
  • Employers who do not offer the same job (or a real equivalent alternative) risk claims including constructive unfair dismissal, pregnancy or maternity-related discrimination. There are also special protections from detriment or dismissal because of taking maternity leave.
  • An employee has to prove that the new job is less favourable than her old one. A less favourable inferior role includes one which is technically equivalent to the old job with the same job title and pay, but the work is less interesting. It is discrimination to offer her a job with less responsibility, different clients, less commission and so on.

Employers who fail to consult with an employee on proposed changes to her role face similar claims.

An employee who wishes to vary her own working patterns when she returns to work is in a different position. She may make a request for flexible working. Any changes can be agreed to by the employer as a contractual variation. Flexible working options can be discussed with the employee before, during or after maternity leave (Requesting flexible working Q&As).

See also:

  • What happens if an employee's position becomes redundant during the maternity leave period?
  • What benefits must employers provide during maternity leave?

Not returning to work – notice

Although an employee does not have to give the employer notice if she intends to return to work at the end of her maternity leave, if she does not intend to return she should give at least the period of notice required by her employment contract (Terms and conditions of employment Q&As).

In practice, many employees who do not intend to return may not decide until the last minute. If an employee does not give the required amount of notice, she is in breach of her contract.

The same principles apply to an employee who does not intend to return after a period of shared parental leave (see the related Q&As).

Women are entitled to their full benefit package throughout maternity leave, except in relation to wages or salary.

The easiest solution for employers is to honour all contractual benefits, because the law governing this area is complex:

  • the law treats entitlement to remuneration (wages) and other benefits differently
  • some legislation distinguishes between the concepts of ordinary maternity leave (OML) and additional maternity leave (AML)
  • other legislation distinguishes between paid and unpaid periods of maternity absence.

The key points when considering what general benefits an employee is entitled to during maternity leave are therefore as follows:

  • the employment contract continues to exist during maternity leave, albeit on a different basis, in that the employee is entitled to receive all contractual benefits except remuneration
  • instead of her normal salary, the employee will be entitled to maternity pay during the statutory maternity pay period (see the related Q&A What statutory maternity pay must an employer pay?)
  • in addition to statutory or contractual maternity pay, an employee on maternity leave will be entitled to other benefits.

Ordinary maternity leave

During OML, an employee is entitled to maternity pay. Her contract of employment also continues during OML, and she is entitled to receive all of her contractual benefits except remuneration.

Remuneration is narrowly defined as 'salary or wages' (see Regulation 9 of the Maternity and Parental Leave Regulations 1999). What constitutes salary or wages is a subject of legal debate – and this is important, because if a benefit can be categorised as something other than remuneration the employee will be entitled to it. Legal advice should be taken.

Additional maternity leave

The contract of employment also remains in existence during AML. It can be ended only by resignation or express dismissal. An employee taking AML is, like an employee taking OML, entitled to the benefit of (and bound by any obligations arising from) all the terms and conditions of employment which would have applied if she had not been absent. As discussed, this does not include terms and conditions related to her remuneration.

Employment-related benefits during AML

Although there is a conceptual difference between OML and AML, there is now little practical difference as far as benefits are concerned. Most employees have the right to full contractual benefits (other than pay).

Under the Maternity and Parental Leave Regulations 1999, claims for discrimination are allowed in relation to:

  • terms and conditions of employment during periods of AML, and to the same extent to which they are available in relation to periods of OML; and
  • eligibility for bonuses while on compulsory maternity leave.

Benefits such as holiday entitlement accrue during the entire maternity leave period. Employers are not permitted to deduct money from wages to cover the cost of providing these benefits. Employers should check maternity leave policies and procedures to ensure that women will continue to accrue contractual benefits throughout the entire period of maternity leave (see also What is the position concerning holiday entitlement during maternity leave?).

Pay increases

See What happens to the level of statutory maternity pay if the employee is awarded a pay rise before or while absent on maternity leave?

Bonuses

The position regarding an employee’s entitlement to a bonus during maternity leave is extremely complex.

Employers should pay performance-related bonuses for any periods worked, plus the first two compulsory weeks of maternity leave. If the bonus is performance-related it may be reduced pro-rata to account for the time spent on maternity leave during the bonus period. So when employers work out bonuses, the actual time during which the employee is on maternity leave will not be included – except for the two weeks of compulsory maternity leave, which must always be treated as time worked.

For example, an employee goes on maternity leave halfway through her employer's accounting year. At the end of the accounting year, when bonuses are awarded to all employees, she would be entitled to a bonus based on the six months when she was not on maternity leave, plus the two-week compulsory maternity leave period.

The law relating to discretionary bonuses is even more complex, as there is no consensus in the case law as to whether discretionary bonuses may be paid in full or not. Bearing in mind that women have no right to 'remuneration' during maternity leave, the greatest claim a woman on maternity leave has is probably for a pro-rata discretionary bonus, taking account of the periods of work plus the two-week compulsory maternity leave period.

If any period worked or on compulsory maternity leave is not taken into account when assessing entitlement, a claim for sex discrimination may be brought.

Pension contributions

Pension contributions are a benefit, but are treated separately from other benefits. Employees have a right to pension contributions for the entire period of paid maternity absence (for many women, the 39-week period of statutory maternity pay). Other payments falling within this category will include payments for termination of service, retirement, death, interruptions of service and payments for sickness, accidents or injuries or unemployment.

For further information see the related Q&As.

For most employees, paid holiday entitlement builds up during the whole maternity leave and shared parental leave period.

Holiday entitlement during maternity leave

An employee builds up her entitlement to paid holiday during maternity leave. This will include the employee’s contractual holiday entitlement. This is because women on maternity leave retain all their contractual rights (except for pay) as though they were still at work. Most employees will take the paid holiday accrued before or after their maternity leave.

Employers have to provide any non-cash benefits due under the employment contract, so employees are entitled to accrue any contractual annual holiday over and above the statutory entitlement for the entire maternity leave period.

For example, a full time employee is contractually entitled to six weeks’ (30 days) paid holiday a year. She is entitled to 30 days’ contractual holiday on full pay accrued during the total 52 weeks she takes as maternity leave.

Holiday entitlement during shared parental leave

Parents taking shared parental leave will retain employment rights – including holidays. Holiday will therefore accrue during shared parental leave as it does during maternity leave.

For example, a couple has a baby and the mother normally gets 28 days’ holiday a year and the father gets 30 days’ holiday a year.

The mother takes an initial two weeks’ maternity leave after the birth and receives statutory maternity pay (SMP). After this there is 50 weeks’ shared parental leave remaining. The mother takes the next 26 weeks as maternity leave, then shares the remaining 24 weeks leave with the father (shared parental leave – there is a total of 37 weeks of SMP shared between them).

The mother would have 28/52 x 28 days holiday for the period she was on leave, which works out at 15 days’ paid holiday to be taken after her maternity leave. The father would get 24/52 x 30 for his period of leave (13.8 days’ holiday, which the employer could round up to 14 days), to be taken after his shared parental leave. In addition, they would both be accruing paid holiday in the normal way while they were working.

Monitoring periods of shared parental leave and keeping track of the correct provision of holiday can be tricky, especially where the shared parental leave is taken in discontinuous blocks.

Carrying holiday entitlement over

Problems may arise if the employee’s contract does not allow for holiday to be carried over from one holiday year to another, or if the contract does not give a right to payment in lieu of untaken holiday entitlement, or if an employee does not have time to take her holiday after her maternity leave and before the end of the leave year.

The simplest solutions are either to allow a woman to take annual leave immediately before the period of maternity leave begins, or to carry over her holiday to the next holiday year. Most employers will allow a woman to add her accrued paid holiday to the beginning or end of her maternity leave period.

The same problems can arise with shared parental leave. For example, either parent may not have time to take their holiday after the leave ends and before the end of the leave year. However, allowing the parent to add accrued paid holiday to the beginning or end of the leave period can apply in the same way as with maternity leave.

See also the relevant question in the Bank holidays Q&As.

If an employee is awarded a pay rise (or would have been awarded a rise had she not been absent on maternity leave) her statutory maternity pay (SMP) must reflect the pay rise.

The Statutory Maternity Pay (General) (Amendment) Regulations 2005 state that if an employer grants a pay rise that is effective:

  • from a date between the start of the period used to calculate a woman’s SMP, and
  • the end of her maternity leave

then the employer must recalculate the employee’s average weekly earnings, taking account of the pay rise and any arrears of SMP (Alabaster v Barclays Bank PLC (2005)).

In addition, if a pay rise takes effect from a date which falls before the beginning of the relevant period, and the earnings used in that calculation have not been adjusted to reflect the pay rise, then SMP must also be recalculated.

This means that SMP must be adjusted to take into account a pay rise (or pay rises) which occur during a lengthy period. This period could span 17 months from the start of the relevant period to the end of any maternity leave. Pay rises do not need to be backdated to the reference period for them to be taken into account.

Not all employers choose to rely on the statutory maternity provisions as set out below – some will have contractual maternity pay provisions instead. These will override the entitlements as long as the provisions are more beneficial than the statutory ones.

To claim statutory maternity pay (SMP) the employee must give the employer medical evidence of the date her baby is due, in addition to the notification relating to maternity leave (please see the related question on notice and maternity leave). This will normally be a maternity certificate (a ‘Mat B1’), although other evidence may be acceptable, which must be signed by the doctor or midwife no earlier than 20 weeks before the expected week of childbirth.

  • The payment period for both SMP (and maternity allowance if appropriate) is 39 weeks.
  • The first six weeks will be paid at 90% of average weekly earnings (before tax) and the remaining 33 weeks at the SMP rate or 90% of the average weekly earnings if lower).
  • At the beginning of the qualifying week (which is the end of the 15th week before the EWC), a woman must have completed 26 weeks' continuous service with the same employer to qualify for SMP.
  • All pregnant employees who qualify can take advantage of the extended statutory leave period of 52 weeks. Only those who also qualify for SMP will be paid at the statutory rate for 39 weeks of that period followed by a further unpaid 13 weeks. A minority of women who have not worked for their employers for the requisite period will therefore find themselves in the curious position of being entitled to 52 weeks’ leave, but not entitled to SMP at all (although they may qualify for maternity allowance).
  • 28 days is the minimum notice period that must be given to employers before SMP is payable.
  • Employees may choose on which day of the week their SMP begins.
  • Employees may work for the employer who is paying their SMP for up to ten ‘keeping in touch’ days during this period and be paid at their normal rate.
  • To be entitled to SMP, an employee must earn before tax an average of the current Lower Earnings Limit for National Insurance contributions. The average earnings must have been at this level for eight weeks before the last pay day before the qualifying week.

SMP rates are usually increased in April of each year. For the latest SMP rates, see Statutory rates and compensation limits.

Shared parental leave (SPL) applies to parents whose babies were due on or after 5 April 2015 and to parents who adopted children on or after that date.

Employed mothers are entitled to 52 weeks of maternity leave, but can choose to switch part of the statutory maternity leave and pay into SPL and shared parental pay. SPL and shared parental pay will be available provided the parents satisfy the eligibility requirements.

  • In the 52-week period there is two weeks’ compulsory maternity leave (four weeks if they are manual workers) which the mother must take.
  • Eligible parents can then share the remaining maternity leave and pay between themselves.
  • Fathers are still entitled to two weeks basic paternity leave. The two weeks paternity leave will be reviewed in 2018 and possibly extended.
  • Mothers with partners (who must also meet the qualifying conditions) can decide to end the mother's maternity leave and pay and share the untaken balance as SPL and shared parental pay.
  • Employees who have taken SPL are protected from less favourable treatment as they have the right to return to the same job if the total leave taken is 26 weeks or less in aggregate, even if the leave is taken in discontinuous blocks.
  • Any subsequent leave will attract the right to return to the same job, or if that is not reasonably practicable, a similar job.
  • It is up to the parents how they share SPL – they could take it in turns or take time off together, provided they take no more than 52 weeks of this leave, combined in total.
  • Additional paternity leave and pay is abolished in relation to babies which were due on or after 5 April.

Possible shared parental leave arrangements

Some general examples:

  • The mother could take the first eight months, with the father taking the remaining four months.
  • The mother could return to work for a period in the middle of the year with the father looking after the child for that time.
  • The parents could both stay at home together with the child for up to six months.
  • Both parents can take shared parental leave at the same time or take it at different times. The mother’s partner can start shared parental leave while the mother is still on maternity leave, as long as the notification requirements are complied with.

Shared parental leave and adoption and surrogacy

Shared parental leave is also available to adoptive parents and intended parents through surrogacy.

  • Adopters will have the same rights as other parents to maternity leave and pay and, if eligible, will be entitled to shared parental leave and pay.
  • Surrogate parents who meet the criteria to apply for a parental order are eligible for statutory adoption leave and pay, and also for shared parental leave and pay again if they meet the qualifying criteria.

See also Does adoption leave apply to other situations such as an employee who already lives with their partner's children and then adopts them, or surrogacy arrangements?

Unpaid parental leave

Employers should note that the continuing right to 18 weeks’ unpaid parental leave is distinct from the new system of shared parental leave. See the Parental rights and family-friendly provisions Q&As.

Guidance

The government has published technical guidance on SPL. Acas has also published a range of guidance including a good practice guide, summary process and sample policy and letter template downloads.

Shared parental leave (SPL) can be taken by a mother and the child’s father, or the mother’s spouse, civil partner or other partner (‘the parents’). The right to SPL is not an independent right of the person sharing the leave with the mother, but only arises if the mother chooses to curtail her statutory maternity leave and share the remainder.

Both parents have to have been working to take SPL, which means that they must satisfy the employment and earnings test.

SPL applies only to employees with a working partner as long as both of them meet the qualifying conditions. The mother’s entitlement to SPL will depend on the following conditions. She must:

  • satisfy the duration of employment requirements
  • have, or expect to have with her partner, the main responsibility for the care of the child
  • be entitled to statutory maternity leave in respect of the child
  • curtail her statutory maternity leave or returned to work (see What is curtailment of maternity leave and pay and how does it relate to shared parental leave?)
  • comply with the notice requirements to her employer relating to entitlement to SPL
  • supply the required evidence for her employer
  • provide the requisite period of leave notice
  • have a partner who satisfies the employment and earnings test
  • have a partner who has, or expects to have (with the mother), the main responsibility for the care of the child.

The qualification requirements for the mother’s partner are similar because the partner must satisfy the duration of employment and earnings test; have, or expect to have, the main responsibility for the care of the child (apart from any responsibility of the mother) and comply with the notice and evidence requirements.

Continuity of employment and earnings test

These tests are applied to both parents in a similar way.

Continuity of employment

Essentially the continuity of employment test is the same as for statutory maternity pay. This means both the mother and her partner must have worked for their employers continuously for at least 26 weeks up to the 15th week before the expected week of childbirth (the ‘qualifying week’). So SPL is available only if both parents have worked for their employer for 40 weeks before the child’s due date.

Earnings test

The earnings test reflects that for statutory maternity pay. The individuals must be employed or self-employed earners for at least 26 weeks in the 66 weeks immediately before the expected week of childbirth. This 66-week period is known as the test period.

It is then necessary to assess the average gross earnings of both the mother and her partner during the test period.

The average weekly gross earnings must be equal to or above a specified threshold which may be increased each tax year known as the lower earnings limit. The earnings are averaged over a 13-week period from within the 66-week test period. The parents can choose which 13 weeks are best for them. The 13 weeks may be separate or consecutive. Complications can arise where the mother is entitled to maternity leave, but her partner is self-employed, or unemployed.

Complex notification requirements are built in to shared parental leave (SPL). The required notice can be given before the birth and can specify more than one period of leave. In practice many employers provide employees with sample notices covering both leave and pay. We’ll discuss the notices separately for the sake of clarity.

The key notice periods are:

  • The mother will have to give her employer at least eight weeks’ written notice of her intention to end her maternity leave and pay period.
  • Both parents must give written notice at least eight weeks before the start of any period of SPL, stating when the leave will start and end.
  • If the parents wish to take several blocks of leave then they must give their employers eight weeks’ notice in respect of each period of leave. This eight weeks builds in a two-week discussion period.

Types of notice

There are six main types of notification which may need to be provided so that the right to SPL and shared parental pay can be exercised.

Curtailment notice

The mother (or primary adopter) must serve notice bringing her statutory maternity leave to an end at a future date chosen by her. This notice should be given at least eight weeks before the mother wishes her statutory maternity leave to come to an end (and at least nine weeks before the fifty two week maternity or adoption leave is due to end completely). Usually the curtailment notice should be given at the same time as the entitlement notices are served, but must be given at least nine weeks before the 52 weeks of maternity leave is due to end.

If the mother simply returns to work before the full period of maternity leave this will also bring the maternity leave to an end.

An adopter who wishes to end their adoption leave to opt into the shared parental leave would also either return to work before the end of their adoption leave or give notice to their employer that they wish to end their adoption leave on a date in the future that they specify in the notice. Again this notice must be given at least nine weeks before their 52 weeks of adoption leave is due to end.

Entitlement notices

Both the mother and her partner must serve notice confirming their eligibility to take SPL and give a (non-binding) indication as to when SPL will be taken. The information that needs to be given is summarised in a table below.

This notice should also be given at least eight weeks before the first period of SPL.

Booking notice or notice of intention

Both the mother and her partner must serve notice confirming the actual dates of SPL and this must be at least eight weeks before the first period of leave starts.

As this notice should also be given at least eight weeks before the first period of SPL it may be given at the same time as the entitlement notice; or may be submitted later. It is statistically more likely that SPL would be booked by the father when he submits his entitlement notice as when he applies he may know when he is taking the SPL. By contrast when the mother submits the entitlement notice, in the majority of cases she could be taking several months of maternity or adoption leave before she would be taking any SPL.

An employee can give individual SPL notices for each period of SPL if it is being taken in blocks or can make requests for multiple periods of blocks of SPL in one notice. A single booking notice must specify a minimum of at least one week’s leave and may specify more weeks in continuous or discontinuous blocks.

An employee has a protected statutory right to take the number of weeks of leave in the booking notice in a single continuous block. If the single notice includes discontinuous weeks, then employer can reject this and require all the weeks of leave to be taken in a single block.

Revocation notice

A mother can revoke her leave curtailment notice in limited circumstances including the death of her partner.

Variation and cancellation notice

There are two types of variation or cancellation notices. One to vary the notice of intention and one to vary the period of leave.

If an employee gives notice varying the amount of SPL they intend to take, the notice must include details of when the employee now wants to take SPL and a declaration from the other parent agreeing to the variation.

Again, at least 8 weeks’ notice must be given before the earliest of the new date, or the date being changed.

Shared Parental Pay notice

Eight weeks before the period for which the employee is claiming the pay, the employee claims it and specifies the number of weeks, total amount and dates that they are claiming for. The other parent provides a written declaration consenting to the employee’s claim for ShPP.

Employer's response

Within 14 days of the employee giving their entitlement notice or their ShPP the employer may respond. They may ask for the name and address of the other parent’s employer and may ask for a birth certificate if the baby has been born. The employee must supply the information within 14 days, or if the notice of entitlement was before the birth the information must be given as soon as practicable after the birth.

Information to be provided in the entitlement notice

Mother’s entitlement notice to be given to mother’s employer

  • Mother’s own name
  • Partner's name
  • Start and end dates of mother’s statutory maternity leave
  • Total amount of SPL available
  • Child’s EWC or date of birth
  • How much SPL each parent wants to take
  • Non binding indication of the dates that the employee intends to take SPL

Partner’s entitlement notice to be given to partner’s employer

  • Partner’s own name
  • Mother's name
  • Start and end dates of mother’s statutory maternity leave
  • Total amount of SPL available
  • Child’s EWC or date of birth
  • How much SPL each parent wants to take
  • Non-binding indication of the dates that the employee intends to take SPL

Declarations

Declarations must accompany the notice of entitlement as follows:

Declaration 1

Mother’s own declaration to be given to mother’s employer

  • Employee satisfies the eligibility conditions.
  • Information in the notice is accurate
  • Employee will immediately inform their employer if they cease to care for the child.

Partner’s own declaration to be given to partner’s employer

  • Employee satisfies the eligibility conditions.
  • Information in the notice is accurate.
  • Employee will immediately inform their employer if they cease to care for the child.
  • Total amount of SPL available
  • Employee will immediately tell their employer if the mother fails to curtail her SML, SMP or MA.
  • Partner is the father of the child or is married to, or is the civil partner, or partner of the mother.

Declaration 2

Partner’s declaration to be given to mother’s employer.

  • Name, address and National insurance number (partner’s own name and details).
  • They satisfy the eligibility conditions for SPL.
  • Consent to the amount of SPL that the other intends to take (consent to SPL taken by mother).
  • Consent processing the information in the declaration (consent to mother’s employer processing the partner’s information).
  • Partner is the father of the child or is married to, or is the civil partner, or partner of the mother.

Mother’s declaration to be given to partner’s employer.

  • Name, address and National insurance number (mother’s own name and details).
  • They satisfy the eligibility conditions for SPL.
  • Consent to the amount of SPL that the other intends to take (consent to SPL taken by partner).
  • Consent processing the information in the declaration (consent to partner’s employer processing the mother’s information).
  • Mother will immediately inform partner if she fails to curtail her SML, SMP or MA.

Variations to the pattern of leave

Any leave arrangements already notified to the employer can be changed by means of a variation notice, provided eight weeks’ notice is given of the revised start date for the leave. An employee has up to three opportunities to book or vary leave, although employers can voluntarily agree additional variation opportunities and an exception applies to the notice requirements where the baby is born early.

  • The parents must give an indication of their expected leave pattern when they notify their respective employers of their intention to take SPL, although this is non-binding.
  • If the employee requests a single continuous period of leave they can take it as requested.
  • Working parents can request shared parental leave in a discontinuous pattern. If so the employer can:
    • agree to the requested pattern of leave
    • reject the request in its present form
    • propose changes to the request
    • insist the employee takes the leave in a continuous block.

If the employer and employee cannot agree within two weeks the employee can withdraw their request or take the leave requested as a single continuous period.

Under SPL, parents may make only up to three statutory notifications for leave or changes to periods of leave. If a notice is withdrawn because the leave pattern cannot be agreed, it does not count towards the three notices. However parents and employers can agree further periods of leave and changes outside the statutory scheme.

Curtailment is an essential new principle that underpins the entire shared parental leave system and arises where an eligible mother brings an early end to her maternity (or adoption) leave and, if appropriate, her pay entitlement too. This is sometimes referred to as reducing the maternity (adoption) leave or pay period.

Curtailment of leave

An eligible mother (or adopter) has to curtail her maternity or adoption leave in order for either parent to then be entitled to shared parental leave. The mother gives notice to bring her maternity leave to an end at a date in the future. Until that date, she continues to be on maternity leave and to be eligible for her maternity pay and benefits. The mother can either curtail her maternity leave by:

  • simply returning to work, or
  • giving notice to curtail her maternity (or adoption) leave on a specified future date.

Where maternity (or adoption) leave has been curtailed under the Curtailment Regulations, the balance of the untaken maternity leave can then be used as shared parental leave. Both parents must also satisfy entitlement and notification criteria referred to in How does shared parental leave work?

The benefit of planning and curtailing leave in advance is that both parties will know the number of weeks of maternity (or adoption) leave that will be used in advance, then the child’s father (or mother’s partner) can start shared parental leave while the mother is on maternity leave too. To achieve this, the mother will have to give notice before the birth that she’ll curtail her maternity leave. This will trigger the shared parental leave available to the partner, who will also have given notice to their employer of their entitlement to the shared parental leave.

If the mother simply returns to work without notifying the curtailment in advance, then both parents will not be at home together with the child in the early days other than at normal paternity leave times.

Curtailment of pay

In the same way that the Curtailment Regulations enable the cutting short of maternity and adoption leave, other regulations enable the curtailment of statutory maternity, statutory adoption, and maternity allowance pay. A mother (or an adopter) can reduce the number of weeks of statutory maternity pay from the normal 39 weeks. The mother has to take the first two weeks’ maternity leave and pay, but the remaining 37 weeks’ pay can be reallocated as statutory shared parental pay. The child’s father may start receiving this while the mother is still claiming statutory maternity pay/allowance.

The Maternity and Adoption Leave (Curtailment of Statutory Rights to Leave) Regulations 2014 (the Curtailment Regulations) contain the relevant rules about curtailment of leave. The Statutory Maternity Pay and Statutory Adoption Pay (Curtailment) Regulations 2014 and Maternity Allowance (Curtailment) Regulations 2014 deal with curtailment of pay.

As with eligibility for the actual shared parental leave (SPL) itself employees also have to establish eligibility for shared parental pay (ShPP).

Eligibility

An employee will be eligible for ShPP if:

  • the employee has complied with relevant notices and declarations
  • the mother is entitled to statutory maternity pay (SMP), but has reduced her entitlement.*
  • both parents have the main responsibility for looking after the child
  • the employee will be caring for the child during each week that ShPP is paid
  • both parents satisfy the continuity of employment test ( the employee basically must have worked for the same employer for at least 26 weeks at the end of the 15th week before the week in which the child is due (or at the week in which an adopter was notified of having been matched with a child or adoption) and must still be employed in the first week that SPL)
  • both parents satisfy the normal weekly earnings test (the person must have worked for at least 26 weeks in the 66 weeks leading up to the due date and have earned above the maternity allowance threshold in 13 of the 66 weeks.)

*For a father to be entitled to ShPP the mother can be entitled to SMP or MA. However, for the mother to claim ShPP herself she must have been entitled to SMP.

ShPP period and rate

Once eligibility is established, the basics of the ShPP time period and rate is:

  • Employed mothers are entitled to 39 weeks’ statutory maternity pay if they are on maternity leave.
  • Fathers are entitled to two weeks’ basic paternity pay.
  • If the parents take SPL then part of the maternity pay will swap to the partner.
  • The total period of paid leave will not exceed 39 weeks, whichever parent takes the leave.
  • ShPP is paid at the SMP rate.
  • The amount of ShPP will be however much is left of the 39-week SMP period when the mother curtails her SMP period. No ShPP can be paid before the SMP period ends. As both parents can be off work at the same time, both can be receiving ShPP at the same time.
  • As now, statutory maternity pay is paid to eligible mothers for up to 39 weeks. The mother must take two weeks compulsory maternity leave so the maximum untaken maternity or adoption pay that can become available as ShPP is up to a maximum of 37 weeks.
  • ShPP is only created where an eligible mother or adopter chooses to reduce the maternity or adoption pay period or the maternity allowance period by ending that pay period early.
  • Employers should note that as the first six weeks of statutory maternity leave is paid at 90 per cent of the woman’s earnings it is unlikely that many couples would choose to share parental leave before the first six weeks of statutory maternity leave had expired because if they did, they would be paid less assuming that 90 per cent of the mother’s pay is more than the flat rate.

For the latest SMP and ShPP rates, see Statutory rates and compensation limits.

The Department for Business, Energy and Industrial Strategy has published an online calculator for prospective parents to help them work out their leave, including SPL.

This Q&A has focused on the statutory arrangements for ShPP, but some employers may voluntarily consider offering contractual arrangements which provide enhanced pay to either men or women for all or part of the SPL period. This could give rise to discrimination claims if there is inequality of treatment in the way enhanced pay is offered. For more, see Is it discriminatory to treat a woman differently on the basis of pregnancy or maternity for example by granting enhanced maternity benefits which are not available to men?

The two different employers of parents expecting to share parental leave (SPL) do not need to communicate with each other. Admittedly the legislation enables an employer to obtain the details of the employee’s partner’s employer. However the Government has said that there is no need for direct communication between both employers. However, if an employer does end up contacting the other employer they should watch out for data protection issues.

The process is similar to that already in place for maternity, paternity and adoption leave and pay because organising SPL and pay relies upon both parents and employers providing open and honest information.

The information requirements should enable one employer to check the remaining leave and pay available as SPL.

Refusing requests

Requests for discontinuous shared parental leave must be properly considered by employers but there is limited discretion to refuse requests.

If an eligible employee gives eight weeks’ notice that they intend to take a continuous period of shared parental leave, there is no discretion available. The employer is compelled to accept the request.

If an eligible employee gives eight weeks’ notice that they intend to take a discontinuous period the process is more complex and the following points apply:

  • The employer has 14 calendar days in which to consider the request and decide whether or not to agree.
  • If the employer agrees to the request it writes to the employee confirming the SPL dates.
  • If the employer disagrees the employer should discuss with the employee whether the employee can adapt their request. An employee must not be pressurised nor suffer detrimental treatment.
  • If no agreement is reached the employer can refuse the employee’s discontinuous leave request.
    The employee then chooses whether to take the same amount of leave in one continuous block or to withdraw the request.
  • If the request is withdrawn at any time on or before the 15th day after making the request, it does not count towards one of the employee’s three requests.

Employers who offer enhanced maternity pay may face discrimination claims if they do not equalise benefits to men seeking shared parental leave (SPL) (see Is an employer taking a risk if they do not provide contractual parental leave packages to male and female employees and what claims may men bring against an employer who treats them less favourably?).

Apart from discrimination, other issues may arise. Employers who have not yet received requests for SPL have to learn how it works and, as with all new systems, there will be some teething problems for managers.

Parents may not discuss their preferred work pattern with their employer in good time, or give insufficient notice of their leave plans. Although employers can waive the notice periods, this may give problems with arranging temporary staffing – especially as employees do not have to take leave in one block. Employers should have eight weeks’ notice of SPL requests so they can plan in advance.

If parents ask to take some SPL in discontinuous blocks, employers can decline. Where an employee requests one continuous period of SPL, the employee is entitled to take that period of leave and there is little the employer can do.

Where the employee requests discontinuous periods of SPL, then in the two weeks following the date notice was given, the employer may:

  • consent to the periods of leave requested; or
  • propose alternative dates for the periods of leave; or
  • refuse the periods of leave requested without proposing alternative dates.

The employer and employee can then try and agree either the leave pattern or to alternative dates. If they can’t do that within two weeks of the date the notice was given, the employee can withdraw the notice or take the total amount of leave requested in the notice as a continuous period of leave (see What are the notification requirements for shared parental leave?).

The right to return to work has some complex rules attached, and other possible problems include:

  • Some workers, especially the low-paid, have multiple jobs which make arranging blocks of SPL very tricky.
  • SPL does not have extensive pay rights to accompany it, the statutory amounts. For this reason many parents may not be able to afford to use it at all.
  • Complications can arise with self employed parents, single parents or unemployed parents.
  • Problems may also arise if the employer wishes to make redundancies during SPL (see What happens if an employee's position becomes redundant during the shared parental leave period?).

The maternity and paternity and shared parental leave system is based on the expected week of childbirth (EWC).

The EWC remains the key date that determines rights even if the baby is born early or late. A number of potential areas of confusion are explained below.

Early birth – notices

If babies are born early, logic prevails and the employer should accept notices given as soon as is reasonably possible. The standard eight weeks’ notice to book leave does not apply to premature births.

If the baby arrives before the EWC, the eight weeks’ notice of entitlement to book periods of shared parental leave is deemed satisfied if the employee gives notice as soon as they reasonably can.

If an employee has notified their employer of their entitlement to shared parental leave or pay, and has also given a booking notice for a specific period of shared parental leave and pay, if that booking starts within eight weeks of the EWC and the baby arrives early, the employee can bring forward their booked leave and pay.

To achieve this the employee must give the employer a notice to vary the shared parental leave and pay as soon as practicable following the birth. If the baby is very early and no booking has been made, shared parental leave can still be booked. If the employee has given notice of entitlement and has booked a period of shared parental leave and pay starting more than eight weeks after the child’s due date, there are no special provisions if the child is born early. Changes to the arrangements would require the usual eight weeks’ notice.

Late births – notices

In many cases of late birth, the mothers will already be on maternity leave and so have time to vary any curtailment notices. However, the mother has to take at least two weeks of compulsory maternity leave immediately following the birth (four weeks if she works in a factory or workshop).

If the mother has given a leave curtailment date that is so soon after the birth that it falls within her two week compulsory maternity leave period because her baby is born late, the initial leave curtailment notice is invalid. Therefore the mother should just give the  employer a further leave curtailment notice and the leave curtailment date that she gives in that second notice must be at least eight weeks after the second notice.

The partner can still start their shared parental leave after the period of paternity leave if they wish.

Special provisions apply to enable employees on maternity, paternity or shared parental leave to check in with their employers without bringing the leave to an end. These are called Keeping in Touch (KIT) days.

An employee on leave can also work for their employer for up to 10 days by mutual agreement without losing SMP. Important points to note include:

  • The employee can go into the workplace for an hour or a whole day – it will still count as a KIT day.
  • The KIT day arrangements must be made by agreement between the employee and the employer.
  • The KIT day will not bring an employee’s leave period to an end.
  • The employer has no right to demand that KIT work is undertaken and the employee has no right to do such work. (So there is no obligation for either party to agree to KIT days, but if they are agreed to the leave is unaffected.)

The usual arrangement for payment for KIT days is that the employee is paid at their normal rate as they are carrying out work for their employer under their contract. Even if they are simply attending a training day, this still falls under their contract of employment. (Indeed an employee who did not receive their normal rate may be able to claim breach of contract unless they agreed to accept a reduced amount.)

The rate of pay is always a matter for agreement between the employer and employee and may be provided for:

  • in the employment contract; or
  • as agreed on a case-by-case basis.

If the employee is receiving statutory maternity pay:

  • the employer should continue to pay SMP for the week in which KIT work is undertaken
  • the employer will be able to reclaim reimbursement for some or all of this money in the normal way from HMRC
  • the employer may count the amount of SMP for the week in which the work is done towards the agreed contractual pay
  • it will be permissible to agree an amount of contractual pay for the KIT work over and above the weekly SMP rate to reflect the work done. (Whatever amount of money is paid in respect of KIT days, the employer will continue to be able to recover funding for the SMP paid.)

For example, if an employee is absent from work on either maternity or adoption leave from May for 39 weeks and if returns to work for two days a month in September, October, November, December and January (a total of 10 days), they would not lose any week of paid SMP.

If an employee agrees to accept a reduced amount for KIT day, the employer may still be exposed to statutory claims. It is therefore sensible for employers to pay the full contractual amount.

Employees cannot be forced to work KIT days and employers must approach these arrangements seriously and sensitively.

Shared parental leave

Each parent may attend up to 20 shared parental leave in touch (SPLIT) days during the new shared parental leave (SPL) (this is in addition to the ten KIT days allowed during maternity and adoption leave). Therefore a mother who takes maternity leave and SPL will be able to have up to 30 KIT days without bringing her maternity leave or SPL to an end. For more information on SPL see the related Q&As.

If the illness arises after the end of the maternity, paternity or shared parental leave period the employee should be treated in exactly the same way as any other employee. If the reason for the continuing absence is sickness, provided the employee has presented a sick note they should be receive sick pay and sick leave.

If there is no adequate reason for the absence, disciplinary or capability procedures may be appropriate. Note that if the employee is treated less favourably than any other employee who is absent, then the employer may face a sex discrimination claim (see What other statutory claims may pregnant employees and those on maternity leave bring against an employer who tries to dismiss or treat them less favourably as a result of exercising their rights?).

Earlier sickness

Employers should treat pregnancy-related illness separately from other kinds of illness and should not count it towards an employee's total sickness record. Employers should ignore an employee’s period of absence due to pregnancy-related illness if making a decision about her employment for redundancy due to pregnancy-related illness. (Sickness absence associated with a miscarriage should also be treated as pregnancy-related illness.)

Employers should note that if an employee is treated less favourably than any other employee who is absent, then the employer may face a sex discrimination claim (see What other statutory claims may pregnant employees and those on maternity leave bring against an employer who tries to dismiss or treat them less favourably as a result of exercising their rights?).

The basic position is that a pregnant employee, or one on maternity or paternity leave, can initially be placed with other employees in the pool for selection for redundancy (see the related Q&A in the Redundancy Q&As).

If the employee’s previous role has genuinely become redundant, they must be offered a suitable alternative vacancy where one is available. This means that the employee will be treated more favourably than any other potentially redundant employees.

Suitable alternative employment

An employee who is made redundant while on maternity leave is entitled to:

  • be offered a suitable available vacancy with her employer (or an associated employer); and
  • the alternative vacancy must be suitable and appropriate for the employee to do in the circumstances; and
  • the terms and conditions must not be substantially less favourable.

Employees on maternity leave are legally entitled to be offered suitable alternative employment before the end of their existing contracts, if such a role exists. This is a form of positive discrimination.

There would be no need for an employee on maternity leave to compete for a suitable alternative post, as the employer must offer such a vacancy to the absent employee. This gives the employee priority over others who are at risk of redundancy, even if they are better qualified than the employee on maternity leave. Although this applies to employees on maternity leave, most sensible employers would offer vacancies as a priority to pregnant employees as well to protect themselves from discrimination claims. Points to note concerning this right include:

  • Situations where, during the maternity leave period, it is not practicable by reason of redundancy for the employer to continue the existing contract of employment. It applies only to terminations by reason of redundancy and not dismissals for other reasons.
  • Where there is a suitable available vacancy, the employee is entitled to be offered alternative employment before the end of their employment.
  • Any alternative work offered must be suitable for the employee and appropriate for them to do in their new circumstances and on terms not substantially less favourable than their old employment.

If an employer dismisses an employee on maternity leave without offering a suitable alternative vacancy the dismissal is automatically unfair.

Redundancies where there is no suitable alternative employment

Employers may feel that there is no suitable or appropriate vacancy. Ideally the employee should be consulted about this. Employers should always lay a paper trail to prove they have considered if a new role is suitable or appropriate for the employee on leave (see Simpson v Endsleigh Insurance Services (2011)).

It is important to remember that if there is an appropriate vacancy, the woman has a right to be offered it – not just invited to apply for it.

If there are no suitable alternative vacancies, an employee may be made redundant during or after maternity leave, but in order to avoid a claim of unfair dismissal or sex discrimination it is always necessary to ensure the selection is nothing to do with her pregnancy, childbirth or maternity leave.

The Equality Act 2010 makes it unlawful to discriminate against employees because of pregnancy, or because they have given birth, are breastfeeding, or are on maternity leave. This is a protected category in its own right and is not a branch of sex discrimination.

This type of discrimination claim applies during the period of pregnancy and during statutory maternity leave. All employers must have an anti-discrimination policy (which may form part of an equal opportunities policy) which prohibits maternity and pregnancy discrimination.

Pregnant employees and those on maternity leave may pursue the following claims if dismissed or treated less favourably:

  • Automatic unfair dismissal – It is automatically unfair to dismiss an employee for a reason connected with her pregnancy or the fact that she has taken maternity leave.
  • Protection from detriment – An employee must not be subjected to any other detriment because of her pregnancy or her intention to exercise her right to maternity leave.
  • Sex discrimination (under the the Equality Act 2010).
  • Pregnancy and maternity discrimination (under the the Equality Act 2010).

Examples of detrimental treatment include a unilateral change in terms and conditions, a loss of status, or the removal of a contractual benefit.

Employees on shared parental leave may also pursue claims if dismissed or treated less favourably (unfair dismissal, protection from detriment and sex discrimination).

See also What discrimination claims may pregnant employees and employees on maternity leave bring against an employer under the Equality Act 2010?

Direct discrimination

Direct discrimination is the main protection and occurs when an employee is treated unfavourably because of her pregnancy or maternity leave, or because she is breastfeeding.

Defending a claim of direct pregnancy and maternity discrimination is very difficult, although the employer may be able to show that there was no less favourable treatment. Theoretically there is a general occupational requirement test which applies across all the protected grounds, though an employer would struggle to prove that not being pregnant was a genuine occupational requirement. There are, however, some health and safety exceptions referred to below.

Women are also protected from being victimised because they have done anything to uphold their own or someone else’s legal equality rights.

For a woman who is pregnant or on maternity leave, the legal test is not whether she is treated worse than someone else, but whether she is treated unfavourably from the time she tells the employer she is pregnant until the end of her maternity leave.

Example

An employee applies for an internal vacancy before she goes on maternity leave. She is the most qualified candidate but, because she is pregnant, the employer rejects her application saying it needs someone who is 100 per cent committed to the role. This is direct discrimination. It would also be an automatically unfair dismissal.

Other types of discrimination

Indirect discrimination, harassment, associative and perceptive discrimination do not apply to pregnancy and maternity discrimination. Express protection from the harassment of employees by third parties no longer applies to any form of discrimination.

However if someone is treated unfairly because of pregnancy or maternity, the employee may still have another type of claim (such as breach of contract or for sex discrimination).

Similarly, other aspects of discrimination law do not include pregnancy and maternity, for example the duty on public bodies to advance equal opportunities and to foster good relations between those with protected characteristics and the wider community.

Comparators

It is now clear that pregnancy and maternity discrimination is a unique form of discrimination and a comparator is not expressly needed for such claims. A woman discriminated against because of her pregnancy or maternity does not have to show she was treated worse than a male employee.

The general principle is that women should not be disadvantaged by their pregnancy or maternity. In the case of women who are pregnant or on maternity leave, the legal test is not whether the woman is treated worse than someone else, but whether she is treated unfavourably from the time she tells the employer she is pregnant until the end of her maternity leave.

Exceptions

Different treatment may be permitted and will not be discrimination if it is absolutely necessary to follow health and safety laws to protect women who are pregnant or who have recently given birth.

It is not sex discrimination against a man to make special provision for a woman in connection with her pregnancy or maternity. For example, an employer allows a pregnant worker to have time off to attend extra swimming classes for pregnant women at a nearby gym. The pregnant worker makes up the lost hours at another time (she wouldn’t have to do this for an ante-natal appointment). A male employee cannot complain that he is refused permission to go to a fitness class during working hours – that is not sex discrimination.

See also Is an employer taking a risk if they do not provide contractual parental leave packages to male and female employees and what claims may men bring against an employer who treats them less favourably?

The short answer is yes. In some areas the law provides for a difference in treatment, but in other areas it does not. However, the law in this area is changing.

Shared parental pay (SHPP) is likely to present employers with dilemmas about whether men need to be offered benefits which mirror any enhanced packages offered to women taking maternity leave.

The basic position for men who are treated less favourably as a result of exercising their rights to statutory paternity leave or pay or shared parental leave is that they are protected if dismissed or treated less favourably. As a result, they may claim:

  • Automatically unfair dismissal – It is automatically unfair to dismiss an employee for a reason connected with paternity leave or SPL.
  • Protection from detriment – An employee must not be subjected to any other detriment because of exercising his right to paternity leave, or making use of the benefits related to paternity leave etc.
  • Sex discrimination – Under the Equality Act 2010 or the EU Equal Treatment Directive. Sex discrimination claims can also be brought by men who are treated less favourably.

Different treatment of women on the basis of pregnancy or maternity will not generally discriminate against male employees, but if a man requires enhanced benefits because his parenting responsibilities a discrimination claim is more likely to arise if he doesn’t get them.

Options for employers

  • Offering only statutory basic maternity and shared parental pay and leave could be damaging to employee relations and staff retention, and may be a breach of contract if enhanced benefits have already been in place as a contractual right.
  • Offering enhanced parental leave and pay to both sexes and equalising contractual benefits for both men and women has obvious cost implications, but minimises the risk of claims and is the solution adopted by some public sector and larger employers.
  • Providing contractual enhanced maternity pay for a limited period at the same rate for both men and women.
  • Continuing to offer different contractual packages to men and women.
  • Offering contractual benefits to women and statutory benefits to men (or vice versa).
  • Enhancing maternity pay without enhancing shared parental leave.

The take-up of shared parental leave so far appears to be low, so the costs of equalising benefits may not be as great as employers may fear.

If employers already offer contractual maternity packages to female employees they will be in breach of contract if they try to reduce these to the statutory minimum for existing employees. Therefore it is clear that employers who operate enhanced maternity packages face a dilemma about what to offer male employees. The benefits and risks of providing male employees with equivalent paternity benefits are summarised under separate headings below.

No enhanced paternity pay packages – risks

Government guidance states that an occupational maternity or paternity scheme may continue and does not have to be extended to SPL. It clearly intends that employers who offer enhanced maternity pay do not have to offer enhanced pay to men on SPL.

Employers offering enhanced maternity pay benefits still face a significant risk of sex discrimination claims under the Equality Act 2010 or EU legislation if they do not offer equal benefits to male employees, but the UK and EU legal positions remain unclear. The easiest solution is for employers offering enhanced maternity rights to offer enhanced rights to men taking shared parental leave.

The legal arguments are complex because UK and EU laws build in some protection for the different treatment of women. For years, offering enhanced maternity pay did not amount to unlawful discrimination against men.

Basically, a man has to establish that he is in a comparable position to a woman and that denying him enhanced benefits puts him at a disadvantage. Employers have argued that men and women are in different positions due to their biology, and so a man with caring responsibilities does not have to be paid the same. However, parents can now share statutory maternity benefits for much longer so it is hard to argue that the mother is in a different biological position for the whole period.

For example, if female employees are entitled to six months’ full pay after the birth of the baby, it is probably safer to grant male employees six months’ full pay too. There is a clear discrimination risk for employers who do not offer the same enhanced maternity pay to fathers taking shared parental leave. This has led some employers to question whether they can afford to continue offering the enhanced maternity benefits they have historically provided.

For the time being the law remains unclear on whether men can claim discrimination over enhanced maternity benefits. Shared parental leave is a new concept, but there is some existing case law relating to other benefits claimed by fathers that is relevant. The law appears to provide male employees with enough legal ammunition to attempt discrimination claims.

Enhanced paternity pay packages – benefits

Many employers who wish to support and encourage employee loyalty have already decided to mirror maternity benefits with equal paternity or shared parental leave packages.

Bearing in mind that only between 4-8 per cent of eligible fathers have taken APL and that SPL could have a low take up, then the cost may not be as great as employers fear. However if contractual paternity packages are offered, this will of course increase the take up rate.

Case law examples

The first of the following cases suggests that special protection for mothers in relation to their biological position can be challenged. The second two cases suggest that it may be possible for employers to justify men and women receiving different maternity, paternity or parental leave benefits.

In Roca Álvarez v Sesa Start España ETT SA (2010) the European Court of Justice (ECJ) made findings that could help male employees on shared parental leave in the UK claim that they are entitled to enhanced benefits.

In Abdoulaye v Régie nationale des usines Renault SA (1998) it was suggested that under EU law women on maternity leave are in a special position, and so a claim by a man for a lump sum bonus paid to women on maternity leave was rejected.

In Shuter v Ford Motor Company Ltd (2013) an employer introduced a generous enhanced maternity package whereby women on maternity leave got 100 per cent of their basic pay for 52 weeks. This was to aid recruitment and retention of female employees, as the company had a diversity target of 25 per cent women. The APL was the relevant system which applied at the time. Male employees taking APL received only the standard statutory rate of paternity pay.

The employment tribunal held that this was permissible under both UK and EU law. The employer’s aim of recruiting more women to its male-dominated workforce was also enough to objectively justify the policy of paying men and women differently.

This case was based on the system of 26 weeks’ APL, which was available between April 2011 and April 2015, and the decision was made before shared parental leave came into force.

Other problems can arise concerning the pool for selection for redundancy (see Can an employee who is pregnant or on maternity or paternity leave be placed in the pool for selection for redundancy in the same way as other employees? in the Redundancy Q&As).

Women are entitled to take paid time off work to attend antenatal care appointments, and fathers have the right to take unpaid leave to accompany the expectant mother to two of those appointments.

Antenatal care includes appointments with doctors, nurses and midwives. Antenatal classes, relaxation and parenting classes are also covered as long as they are recommended by a health professional. Acupuncture, hypnotherapy and exercise classes may be included if they are recommended on medical advice.

Tribunal decisions in this area have not always been consistent. In Gregory v Tudsbury (1982) the tribunal had supporting medical evidence that relaxation classes were an essential part of the claimant’s antenatal care. In Bateman v Flexible Lamps Ltd (1997), however, an employment tribunal refused to accept that antenatal care would include parenting classes.

Given the potential issues with trying to define ‘antenatal care’ and some inconsistent case law, employers should not unilaterally decide that appointments are not recommended on medical advice unless they have very strong evidence.

Appointments before a pregnancy occurs, for example for IVF treatments, are not covered by the time off for antenatal care arrangements, but employees could bring a discrimination claim if they are not allowed time off for IVF.

Mothers’ rights

Paid time off is available for pregnant women to have antenatal care, with some conditions:

  • the appointment must be attended on the advice of a registered doctor, midwife or health visitor, and
  • the employer is entitled to ask for proof of the pregnancy before approving paid leave (normally the MAT B1 certificate or an appointment card), although the employer cannot request evidence for the very first appointment.

Fathers’ rights

Fathers (and same-sex partners) have the right to unpaid time off on up to two occasions to accompany their pregnant partners to antenatal appointments. This is a ‘from day one’ right, so there is no requisite minimum amount of service the father has to have given the employer to be eligible. The right is for a maximum of six and a half hours per appointment.

The father must be in a qualifying relationship with the pregnant woman or the child, meaning that he is either the:

  • baby’s biological father, or
  • expectant mother’s spouse, civil partner, or partner in an enduring relationship, or
  • intended parent of a child in a surrogacy arrangement (if he and his partner expect to be entitled to, and intend to apply for, a parental order in respect of the baby).

It is also possible that two men may both be entitled to time off with respect to the same woman, for example if a pregnant woman’s husband is not also her baby’s father.

Before it was swallowed by the Department for Business, Energy & Industrial Strategy, the Department for Business, Innovation & Skills published specific guidance on time off to accompany a pregnant woman to antenatal appointments.

Time off

All pregnant employees have the right to reasonable time off during the working day for antenatal care, and there is no set amount of time off available.

Employers must not suggest that an employee can organise appointments outside working hours. Neither can they suggest that the employee uses holiday entitlement to attend antenatal appointments.

Employers can ask employees to try and arrange their appointments to reduce disruption at work, but must not refuse the right to go to an appointment without good reason. The employer is not entitled to require employees to make up the time taken for the antenatal appointments.

Pregnant women are entitled to paid time off only for the actual appointment and any necessary travel and waiting time. Unless the employer agrees otherwise, they should attend work before and after the appointment.

Pay

Employers must pay women their normal hourly rate of pay during the time off for antenatal care. The normal hourly rate is calculated by dividing the amount of a week’s pay by the number of the employee’s normal working hours in that week.

If the pattern of weekly working varies from week to week, the hours can be averaged over the previous 12 complete working weeks before the appointment.

In most cases employers can exclude overtime when working out the hourly rate unless there is a contractual entitlement to overtime.

Part-time workers

Part-time and full-time workers have the same rights. If an employer refuses to allow paid time off for antenatal care to part-time workers, this may be sex discrimination or a breach of the part-time workers Regulations.

Agency workers

Agency workers who have worked for at least 12 weeks in their current role have the same right to time off for antenatal appointments as a permanent employee. Other agency workers do not have the right.

Protection from detriment

An employer must not disadvantage or dismiss an employee who has asked for time off for paid antenatal care, or who has exercised their right to unpaid time off to accompany their partner to antenatal appointments. The potential detrimental treatment covers victimisation, being denied promotion or job opportunities, or otherwise being disadvantaged. If an employee is dismissed for exercising or seeking to exercise these rights, the dismissal is automatically unfair.

In a redundancy selection exercise, employers must not take into account time off for antenatal care when looking at attendance records as part of the selection criteria. (Attendance as a factor in a redundancy selection exercise may also lead to disability discrimination claims.)

Policies

Employers should include with their maternity and paternity and shared parental leave policies a section dealing with antenatal appointments, covering pay at normal rates, reasonable notice of an appointment and the evidence to be provided. A good policy will confirm that time off includes travel to and from the appointment and the factors to be taken into account when deciding whether to accept or refuse a request.

To qualify for ordinary paternity leave, a man must:

  • be an employee
  • have been continuously employed by the same employer for at least 26 weeks by the 15th week before the expected week of childbirth. (In other words, only fathers who started work with that employer before the baby was conceived qualify.) Also see the Q&A on continuous employment in the Discipline and grievances at work Q&As
  • have, or expect to have, responsibility for the upbringing of the child
  • be the biological father OR be married to OR be the partner of the child's mother
  • take the leave for the specific purpose of caring for the newborn and supporting the mother (or for the purpose of caring for a child newly-placed for adoption and supporting the adoptive parent).

To check if an individual has sufficient continuity of employment, or enjoys employee status, see the Discipline and grievance procedures Q&As and Employee status Q&As.

Rights in addition to ordinary paternity leave may be available to some men, depending on when their babies are expected.

Shared parental leave (SPL)

See the relevant Q&As.

An employee who meets the qualifying criteria and notice requirements is usually entitled to take:

  • two weeks’ paternity leave, and
  • shared parental leave (SPL) for parents who agree to swap part of the mother’s maternity leave
  • up to four weeks’ unpaid parental leave if he chooses to take it at this stage rather than subsequently. Parents can take 18 weeks’ parental leave in total up to the child’s 18th birthday, capped at four weeks a year (unless an employer agrees otherwise). For full details of parental leave see the Parental rights and family-friendly provisions Q&As.

Employers must provide two weeks' paid paternity leave, which can be taken as either:

  • a single week, or
  • two consecutive weeks.

Paternity leave must be taken within a 56-day period starting either on the date of the baby’s birth, or at the beginning of the expected week of childbirth, whichever is the later. Another way of expressing this is that the leave is two weeks within the eight weeks following the birth of the child (or the child’s placement for adoption).

Shared parental leave

See the relevant Q&As.

For further information on SPL see the relevant related Q&As.

GOV.UK has an online calculator to help prospective parents work out their maternity and paternity leave and entitlements.

Antenatal care

See What time off must employers provide in relation to antenatal care?

The qualifying criteria for paternity leave is set out in What paternity leave must employers provide? However, the employee may lose the right to the leave and pay if the procedural requirements are not also met.

The employee has to give his employer Form SC3, which contains a self-certificate or declaration of entitlement to leave and pay. The employee should provide:

  • their name
  • national insurance number
  • the expected week of the child’s birth (EWC) or, if the birth has already occurred, the date of birth
  • the length of the period of leave required and the date from which leave is requested
  • the length of leave
  • a declaration that he:
    • is either the father of the child and/or the partner or husband of the mother, and
    • is taking leave either to care for his child and/or to support the mother, and
    • has or expects to have responsibility for the child’s upbringing.

This information should be given to the employer on or before the 15th week of the EWC or, if this is not possible, as soon as possible thereafter and at least 28 days before the leave starts.

Unless they have sound reasons for believing the information is false, employers should accept the declaration. The employee is not obliged to give his employer any medical evidence of the pregnancy or birth (unlike claims for statutory maternity pay).

An employee who meets the qualifying criteria and notice requirements is usually entitled to two weeks’ ordinary statutory paternity pay (SPP).

The two weeks’ SPP rate is the same as the flat rate for statutory maternity pay (SMP), or 90% of average weekly earnings (see What statutory maternity pay must an employer pay?).

However, many employers pay contractual paternity pay at the normal rate of pay for two weeks.

In addition, employees retain the benefit of their terms and conditions of employment (with the exception of contractual remuneration) and are entitled to return to work.

Many employers pay contractual paternity pay at the normal rate for two weeks.

For the latest SMP and SPP rates, see Statutory rates and compensation limits.

For two weeks’ paternity leave, the employee can delay the start of the leave, provided that he gives his employer written notice. The notice must be at least 28 days’ notice before the new leave date.

If the father wishes to delay or cancel the start of shared parental leave which has already been notified he can achieve the variation by means of a notice to vary the agreed leave. Eight weeks’ notice must be given of the change, but special rules apply in the event of an early birth. An employee can give notice to end a period of leave earlier or later than previously notified, or to link a number of discontinuous weeks together into a single block using a variation notice.

An employee has a right to only three notices to book leave, including notices to vary a previously agreed pattern of leave. However, employers can choose to accept more than three booking notices.

Shared parental leave

If the employee wishes to change the start of shared parental leave because the baby is born early special rules apply. The employer should accept notices which are given as soon as is reasonably possible. The standard eight weeks’ notice to book leave does not apply to premature births.

See also What are the notification requirements for shared parental leave? and What special rules apply to shared parental leave when babies are born early or late?

Regulation 12 of the Paternity and Adoption Leave Regulations 2002 confirms that an employee qualifying for paternity leave will be entitled to retain the benefit of their terms and conditions of employment (with the exception of contractual remuneration) and is entitled to return to work.

Under shared parental leave, working parents taking total leave of 26 weeks or less are legally entitled to return to the same job. This is so even if the leave is not taken in one block, but spread out in a discontinuous pattern. Anyone taking more than 26 weeks’ leave has the right to return to the same or a similar job. For more information on shared parental leave see the relevant Q&As.

The basic position is that a pregnant employee, or one on maternity or paternity leave, can initially be placed with other employees in the pool for selection for redundancy (see Can an employee who is pregnant or on maternity or paternity leave be placed in the pool for selection for redundancy in the same way as other employees? in our Redundancy Q&As).

However, if a parent is made redundant while on shared parental leave (SPL), they are entitled to be offered suitable alternative employment before the end of their existing contract, if such employment exists. This is a form of positive discrimination that does not apply to the termination of employment for any other reason than redundancy.

Where it is not practicable by reason of redundancy for the employer to continue to employ the employee on SPL under their existing contract of employment, the employer is obliged to offer any suitable vacancy (in the same way as for women on maternity leave). This means that the employee will be treated more favourably than other potentially redundant employees, even those who are better qualified.

The alternative employment can be with the same employer, the employer’s successor, or an associated employer. The employment takes effect immediately on the ending of the employee’s previous contract, and the role must have been offered to the employee before the expiration of their contract.

There would be no need for an employee on SPL to compete for a suitable alternative post. This mirrors legislation protecting those on paternity and maternity leave.

If there are no suitable alternative vacancies, an employee may be made redundant during SPL. To avoid a claim of unfair dismissal or sex discrimination it is necessary to follow a fair selection process when deciding which employees will be made redundant.

For more information on SPL see the relevant Q&As.

Yes. The right to paid paternity leave is in addition to any unpaid parental leave rights. This means that provided the employee qualifies for the different types of leave, in the first year of the child's life an employee could have a total of 32 weeks absence from work - two weeks after the child is born paid at the statutory rate, a portion of shared parental leave, part of which may be paid and four weeks unpaid parental leave. (There may be more favourable contractual provisions that apply.)

For more information on unpaid parental leave see the Parental rights and family-friendly provisions Q&As.

The essential qualifying requirements for adoption leave are that the employee* must be newly-matched with a child for adoption by an approved adoption agency.

If an employee has adopted in another way, for example informally through family connections, they will not be eligible for adoption leave. Special rules apply for overseas adoptions. Foster parents are not usually eligible for adoption leave (see below).

Adoption leave essentially mirrors maternity leave provisions (see What maternity leave are women employees entitled to?). However, employers should note that:

  • Adoption leave is not available to both parents. If one partner is eligible for adoption leave and pay, the other may take paternity leave and shared parental leave.
  • The entitlement to adoption leave applies to partners of the same sex.
  • An employee must be able to demonstrate that they will have responsibility for the upbringing of the child - it does not matter if they are not married.
  • A match occurs when an approved adoption agency matches an adopter with a child.

One parent is entitled to adoption leave and the other parent may take paternity leave and (if they qualify for it) both parents are entitled to shared parental leave. An adopter who takes adoption leave and or pay may therefore choose to end (or curtail) their adoption leave and pay early and opt into the shared parental leave and pay system in the same way as birth parents. Adopters therefore have the same rights as other parents.

Paternity leave and adoption

An employee is entitled to ordinary paternity leave of one week or two consecutive weeks’ paternity leave, provided:

  • they have been continuously employed by their current employer for 26 weeks or more when their partner is notified that they have been matched with a child, and
  • they are either married to, or are the partner of, the person adopting the child, and
  • they expect to have the main responsibility (along with the person adopting the child) for the upbringing of the adopted child, and
  • the paternity leave must be taken between the day the child is placed with the adopting parent and 56 days after that date.

In addition to ordinary paternity leave, additional rights may be available to men depending upon when their babies were expected to be born.

Shared parental leave

See the relevant Q&As.

Overseas adoption

See Do the adoption provisions apply to employees who are adopting a child from overseas?

Fostering for adoption

People who are also approved as local authority adopters may have a child placed with them who will ultimately be adopted by them on a long term basis. A placement may be a normal fostering arrangement or a ‘fostering for adoption’ arrangement and this will be known before the placement happens. Regular foster parents are not entitled to adoption leave and pay, but prospective adopters may be entitled to adoption leave and pay when a child is placed with them on a fostering for adoption basis.

In fostering for adoption, the adoption leave can be taken in the same way as when a child is matched for adoption. The leave can therefore start up to 14 days before placement, but must start no later than the placement date.

*Employee status Q&As

Answer:

The Employment Act 2002 introduced paid adoption leave for the first time and the Children and Families Act 2013 extended those rights.

For all employees who are having a child or children matched with them or placed for adoption on or after 5 April 2015 they are entitled to:

  • Time off to attend introductory appointments (this is a new right).
  • Fifty two weeks adoption leave (26 weeks' continuous employment is no longer necessary).
  • The right to 52 weeks adoption leave is available to the employed ‘primary’ adopter with the two weeks paternity leave for ‘secondary’ adopters.
  • Shared parental leave is then available, as for birth parents.

Employers should remember that:

  • If an employee has exercised the right to paid time off to attend an adoption appointment they cannot then elect to take paternity leave rather than adoption leave.
  • Employees who suffer detriment or dismissal in relation to time off for ante-natal or adoption appointments are protected.

For more information on shared parental leave see the related relevant Q&As.

  • SC4 – for statutory paternity pay and/or ordinary paternity leave for adoptive parents
  • SC5 – for statutory paternity pay for adoptive parents when adopting abroad
  • SC6 – for statutory adoption pay for employees adopting a child from overseas with their partner
  • SC8 – for additional statutory paternity pay and/or additional paternity leave when adopting a child in the UK
  • SC9 – for additional statutory paternity pay and additional paternity leave when adopting a child from overseas.

The position concerning pay and benefits during adoption leave has some hidden complexities. Before deciding what to offer, employers should be familiar with the legal requirements of:

  • maternity pay and benefits
  • adoption pay and benefits
  • sex discrimination legislation.

Statutory adoption pay

Most adopters will be entitled to statutory adoption pay (SAP) as long as they have average weekly earnings at or above the Lower Earnings Limit for National Insurance which applied at the end of the week the child is matched for adoption.

As of 5 April 2015, the SAP period is 39 weeks.

The employee must have been working continuously for the employer for at least 26 weeks to qualify for SAP. There is no continuous service requirement for the leave (i.e. SAL or SML), although there is a qualifying period for pay (SAP or SMP). SAP is 90 per cent of the employee’s average earnings for the first six weeks, then the statutory adoption pay rate for the remaining 33 weeks. In other words it reflects maternity pay.

Note that while one partner is entitled to adoption pay, the other qualifying partner will be entitled to paternity leave, statutory paternity pay and shared parental leave and pay.

Benefits

The rules on benefits during adoption leave and shared parental leave are the same as those for maternity leave.

For further information on benefits during adoption leave see the related Q&As on what benefits must employers provide during maternity and paternity leave.

For more information on shared parental leave see the relevant related Q&As.

Answer:

Historically adoption leave does not apply to some other situations. For example:

  • an employee who already lives with their partner's children and then adopts them, or
  • surrogacy arrangements.

For situations which are not covered by the existing law, employers may consider granting contractual paid or unpaid career breaks to enable the parent to spend time with the child.

The law concerning surrogacy has changed recently so employers should be especially careful. The qualifying position differs according to whether the surrogacy falls within the arrangements applying before or on or after,5 April 2015.

Parental orders on or after 5 April 2015

Following the provisions in the Children and Families Act 2014 which came into effect on 5 April 2015, surrogate parents, or other parents who meet the relevant criteria can apply for a Parental Order. They are then eligible for statutory adoption leave and pay and shared parental leave and pay.

Surrogate parents who meet the criteria to apply for a Parental Order are therefore eligible for statutory adoption leave and pay and shared parental leave and pay in the same way as adoptive parents.

A surrogate mother who gives birth will usually be entitled to some maternity rights too.

Although the Act ensures that from April 2015 intended surrogate parents will qualify for adoption leave and pay this is provided that one partner is the child’s biological parent.

There may be rare situations where employees make other arrangements to have baby which fall outside the normal rules. Employers should always at least consider offering employees who have new parental responsibilities for a baby or child the same rights as other employees. This generates a positive working environment and avoids the possible cost of very expensive claims under UK and EU law based on for example sex, sexual orientation, or maternity discrimination, or associated discrimination on the grounds of pregnancy.

Answer:

The law has changed recently concerning surrogacy and adoption so employers should be careful.

Employees who are adopting a child from overseas have the same basic rights to 52 weeks adoption leave and pay if they meet the qualifying conditions. The other parent has the same rights to paternity leave and shared parental leave (SPL). The normal qualifying conditions are outlined above in the related FAQs on adoption leave and pay.

However in summary for overseas adopters to qualify for statutory adoption leave an employee must:

  • be the child's adopter
  • have received official notification (permission from a UK authority) that they can adopt from abroad
  • give the employer notice that they want to take the leave.

From 5 April 2015 those adopting from overseas will be entitled to time off for introductory adoption appointments if the employee is the main adopter. Obviously with overseas adoptions the introductory appointments will require more time off to travel overseas than the minimum statutory rights allow. Whether employers are prepared to agree to this will be a matter for agreement between the employer and employee. Adopting a child from overseas means that adoption leave applies from the date of the child’s entry into the UK or from a predetermined date up to 28 days after the date of entry.

Shared parental leave is also available for parents of children placed on or after 5 April 2015, allowing adoptive parents, including those adopting from overseas, to share their leave and pay and equalising the position between adoptive parents and birth parents.

From April 2015 adoption leave and pay will therefore more closely reflect maternity and paternity entitlements available to birth parents from April 2015 and the eligibility criteria for adoption leave is changed so that 26 weeks' employment is no longer necessary.

Most small employers can reclaim up to 92 per cent of these costs, including shared parental pay, from HMRC.

The actual amount a small employer can recover will depend on its annual National Insurance liability.

Parental bereavement bill

Employees have the right to take a ‘reasonable’ amount of unpaid time off to deal with an emergency involving a dependant, including coping with a child’s death. Organisations could offer employees compassionate leave in these circumstances, paid or unpaid, but it now seems grieving parents will gain to right to paid leave in the next few years.

In October 2017, the government confirmed its backing for a private members’ bill, currently progressing through Parliament, which will give employees who lose a child under the age of 18 the right to two weeks’ leave. Under the Parental Bereavement (Leave and Pay) Bill, employees with 26 weeks’ service will also be entitled to receive statutory pay during the fortnight. The government is aiming for the new law to be in force in 2020.

Grandparental leave

The former Chancellor of the Exchequer, George Osborne, announced at the Conservative Party Conference in October 2015 the government’s intention to extend the right to shared parental leave and pay to working grandparents by 2018. The Cameron government then committed to producing a consultation on the issue in May 2016, intended to be part of a wider consultation on streamlining shared parental leave. But the consultation did not materialise and so far Theresa May’s government has not pursued the issue.

Brexit

For information on what Brexit might mean for employment law read the blog by our Public Policy Advisor (Employer Relations) and visit our resource hub.

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