Introduces maternity and paternity rights, shared parental leave, and adoption rights in the UK
Most of the relevant legislation can be found consolidated into the Employment Rights Act 1996 or the Employment Relations Act 1999. 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. The Gov.uk website provides guidance and interactive tools on maternity, paternity, shared parental and adoption leave and pay.
Acas also produces guidance; for example, in September 2017 it published advice to assist employers in supporting staff who have given birth to premature or ill babies.
In Northern Ireland, information on maternity, paternity, shared parental and adoption leave and pay is available from nidirect
Statutory maternity, paternity, shared parental and adoption pay
Most small employers can reclaim up to 92 per cent of these costs from HMRC. The actual amount they can recover will depend on their annual National Insurance liability.
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All employees, regardless of their length of service or part-time or full-time status, qualify for maternity leave.
An employee who is the biological mother of her child is usually entitled to take 52 weeks' maternity leave:
- 26 weeks’ ordinary maternity leave (OML); followed by
- 26 weeks’ additional maternity leave (AML); 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.
A couple can choose to switch part of the 52 weeks of maternity leave into shared parental leave and shared parental pay (SPL and ShPP), provided the parents satisfy the eligibility requirements.
Pregnant employees are also entitled to paid time off for antenatal care.
There are a number of important points about the way maternity leave periods work:
- There is no qualifying period of employment.
- Women who were pregnant when they started working for their employer are entitled to maternity leave.
- Employees can choose when to start maternity leave, but it cannot begin before 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).
Notice periods for maternity leave and returning to work
Starting maternity leave
An employee must notify her employer of:
- her intention to take maternity leave and
- the start date of her leave.
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.
This notice must be in writing if the employer requests it and the notification must be no later than the end of the 15th week before the expected week of childbirth (EWC).
An employer receiving notice of the proposed start date of maternity leave should respond in writing within 28 days, setting out the expected date of the employee's return.
An employer can trigger the period of maternity leave automatically if the employee is absent for pregnancy-related sickness four weeks before the EWC. If the baby arrives earlier, the maternity leave will start on the day after the child is born.
Return to work
A woman does not have to give any warning if she intends to return to work the day after her maternity leave ends. If she wishes to return to work early, before the end of the full maternity leave period, she must give eight weeks’ notice of her return date. The employer can agree to accept reduced notice.
If an employee tries to return to work early without the full eight weeks’ notice, the employer can effectively give itself eight weeks’ notice by postponing the employee’s leave.The postponement date must not be later than the end of the maternity leave period.
Separate notification requirements apply for shared parental leave (see below).
Time off for antenatal care
Women are entitled to take paid time off work to attend antenatal care appointments, and fathers or partners 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.
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,
- 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 and partners, including same-sex partners, have the right to unpaid time off on up to two occasions to accompany their pregnant partners to antenatal appointments. The right is for a maximum of six and a half hours per appointment.
The father or partner must be in a qualifying relationship with the pregnant woman or the child, meaning that they are either the:
- baby’s biological father
- in a long term relationship with the expectant mother
- intended parent of a child in a surrogacy arrangement (if they and their partner expect to be entitled to, and intend to apply for, a parental order in respect of the baby).
(See Gov.uk guidance on time off to accompany a pregnant woman to antenatal appointments.)
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.
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 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 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.)
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.
Statutory maternity pay
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. This will normally be a maternity certificate (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 10 ‘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.
Benefits during maternity leave
Women are entitled to their full benefit package throughout maternity leave, except in relation to wages or salary.
The key points when considering what general benefits an employee is entitled to during maternity leave are:
- 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
- in addition to statutory or contractual maternity pay, an employee on maternity leave should receive everything other than ‘salary or wages’.
Benefits such as holiday entitlement accrue during the entire maternity leave period.
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.
The position regarding an employee’s entitlement to a bonus during maternity leave is extremely complex.
If the bonus is performance-related, employers should pay it for any periods worked, plus the first two compulsory weeks of maternity leave. 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, if 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 are a benefit, but are treated separately from other benefits. Employees have a right to pension contributions for the entire period of paid maternity leave (for many women, the 39-week period of statutory maternity pay). Other payments falling within this category include payments for termination of service, retirement, death, interruptions of service and payments for sickness, accidents or injuries or unemployment.
Keeping in touch (KIT) days
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 agreed 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
- 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
- the employer and employee can 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 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.
Choosing not to return to work
If an employee does not intend to return to work at the end of maternity leave, she should give the period of notice required by her employment contract (see Terms and conditions of employment Q&As).
In practice, many employees may not decide until the last minute that they do not intend to return. If an employee does not give the required amount of notice, she is technically in breach of her contract, although most employers would agree to accept a reduced notice period.
The same principles apply to an employee who does not intend to return after a period of shared parental leave.
Redundancy during maternity leave
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 Redundancy Q&As).
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.
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 her. This gives the absent employee priority over others who are at risk of redundancy, even if they are better qualified than the employee on maternity leave. This is a form of positive discrimination.
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.
If an employer dismisses an employee on maternity leave without offering a suitable alternative vacancy the dismissal is automatically unfair.
Note that this right applies only to terminations because of redundancy and not dismissals for other reasons.
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 maintain a paper trail to prove they have considered whether 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.
It is unlawful to discriminate against employees because of pregnancy, or because they have given birth, are breastfeeding, or are on 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 detriment because of her pregnancy or her intention to exercise her right to maternity leave.
- Sex discrimination.
- Pregnancy and maternity discrimination.
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).
Direct discrimination 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.
Women are also protected from being victimised because they have done something to uphold their own or someone else’s equality rights.
For a woman who is pregnant or on maternity leave, the legal test is not whether she has been treated less favourably than someone else, but whether she is treated less favourably from the time she tells the employer she is pregnant until the end of her maternity leave.
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).
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.
Different treatment 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 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.
Moving from maternity leave and pay to shared parental leave and pay
Curtailment 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.
Curtailment of leave
An eligible mother (or adopter) has to curtail their 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 future date. 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, the balance of the untaken maternity leave can then be used as shared parental leave.
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/mother's partner may start receiving this while the mother is still claiming statutory maternity pay/allowance.
Shared parental leave
The system of shared parental leave (SPL) allows parents to share leave between them. The right applies to both opposite-sex and same-sex couples, and similar rights apply to couples who are adopting a child. There is also a right to up to 37 weeks of statutory shared parental pay which can be shared between the parents.
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.
The mother shortens her 52 weeks of maternity leave, by choosing to switch part of this maternity leave and pay into SPL and pay. Only parents that satisfy the eligibility requirements can take advantage of SPL and pay.
In the 52-week leave period there is two weeks’ compulsory maternity leave which the mother must take. Eligible parents can then share the remaining maternity leave and pay between themselves.
- Fathers and partners are still entitled to two weeks’ basic paternity leave.
- Mothers (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 pay with the child's other parent.
- 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. The parents must indicate their expected leave pattern when they notify their respective employers of their intention to take SPL, although this is non-binding.
Each parent may attend up to 20 shared parental leave in touch (SPLIT) days during the shared parental leave. This is in addition to the 10 KIT days allowed during maternity and adoption leave. 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.
Possible shared parental leave arrangements
Some general examples:
- The mother could take the first eight months, with the father/partner taking the remaining four months.
- The mother could return to work for a period in the middle of the year with the father/partner 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.
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.
Eligibility for shared parental leave
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 right to SPL does not belong to the person sharing the leave with the mother.
SPL only arises if the mother chooses to end her statutory maternity leave and share the remainder. Both parents have to have been working to take SPL, and must satisfy the employment and earnings test.
The mother’s entitlement to SPL will depend on whether she:
- satisfies the duration of employment requirements
- has, or expects to have with her partner, the main responsibility for the care of the child
- is entitled to statutory maternity leave in respect of the child
- curtails her statutory maternity leave or returned to work
- complies with the notice requirements to her employer relating to entitlement to SPL
- supplies the required evidence for her employer
- provides the requisite period of leave notice
- has a partner who satisfies the employment and earnings test
- has 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.
The following 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.
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 known as the lower earnings limit. Complications can arise where the mother is entitled to maternity leave, but her partner is self-employed, or unemployed.
Notification requirements for shared parental leave
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.
The key notice periods are:
- The mother has 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.
The mother (or primary adopter) must serve notice bringing her statutory maternity leave to an end. This notice should be given at least eight weeks before maternity leave will end. Usually the curtailment notice should be given when the entitlement notices are served, but it 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.
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.
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.
This may be given at the same time as the entitlement notice, or may be submitted later.
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.
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 eight 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 Shared Parental Pay (ShPP).
The employer must respond within 14 days of the employee giving their entitlement notice. 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
The entitlement notice given to the mother’s employer should contain:
- The mother’s own name
- The 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
The entitlement notice to be given to the partner’s employer should contain:
- The partner’s own name
- The 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 must accompany the notice of entitlement as follows.
The mother’s declaration to her own employer should disclose show that she:
- satisfies the eligibility conditions
- has provided accurate information in the notice
- will immediately inform her employer if she ceases to care for the child.
The partner’s declaration to their own employer should show the total amount of SPL available and that they:
- satisfy the eligibility conditions
- have supplied accurate information in the notice
- will immediately inform their employer if they cease to care for the child
- will immediately tell their employer if the mother fails to curtail her SML, SMP or MA
- are the child's father or married to, or the partner of, the child's mother.
The mother’s declaration to the partner’s employer should show:
- The mother’s name, address and National Insurance number
- They satisfy the eligibility conditions for SPL
- Consent to the amount of SPL that the partner intends to take
- Consent to the partner’s employer processing the information in the declaration
- An undertaking that the mother will immediately inform her partner if she fails to curtail her SML, SMP or MA.
The partner’s declaration to the mother’s employer should show:
- The partner’s name, address and National Insurance number
- The partner satisfies the eligibility conditions for SPL
- Consent to the amount of SPL that the mother intends to take
- Consent to the mother’s employer processing the partner’s information
- The partner is the father of the child or partner of the child's mother.
Shared parental pay
There are statutory arrangements for ShPP, but employers may voluntarily consider offering contractual arrangements which provide enhanced pay to either mothers or their partners for all or part of the SPL period.
As with eligibility for the statutory shared parental leave (SPL) itself, employees also have to establish eligibility for shared parental pay (ShPP).
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 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 commences)
- both parents satisfy the normal weekly earnings test (they 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 or partner 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 for ShPP is established:
- 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 the partner receives will be whatever is left of the SMP period when the mother curtails it; no ShPP can be paid before the SMP period ends. However, both parents can be off work and receiving ShPP at the same time.
- Statutory maternity pay is paid to eligible mothers for up to 39 weeks, but the mother must take two weeks compulsory maternity leave, so the maximum untaken maternity or adoption pay that can become available as ShPP is 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.
To qualify for ordinary paternity leave, you 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 and partners who started work with that employer before the baby was conceived qualify)
- have, or expect to have, responsibility for the upbringing of the child
- be the father or partner of the child's mother
- take the leave for the specific purpose of caring for the child and supporting the mother (or caring for a child newly-placed for adoption and adoptive parent).
An employee who meets the qualifying criteria and notice requirements is usually entitled to take:
- two weeks’ paternity leave
- shared parental leave (SPL)
- up to four weeks’ unpaid parental leave, if they choose 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).
Employers must provide two weeks' paid paternity leave, which can be taken as either:
- a single week
- 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).
Gov.uk has an online calculator to help prospective parents work out their maternity and paternity leave and entitlements.
Notice for paternity leave and pay
In addition to satisfying the qualifying criteria for taking paid paternity leave, an employee must also meet the procedural requirements.
An employee has to complete and give to their employer form SC3 (or the employer's equivalent), which contains a self-certificate or declaration of entitlement to paternity 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 commencement datea declaration that they fulfil all three of the following criteria.
They also have to confrirm that:
- they are either the father of the child and/or the partner of the mother
- they are taking the leave to care for the child and/or support the mother
- they are responsible for caring for the child.
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 afterwards 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 their employer any medical evidence of the pregnancy or birth (unlike claims for statutory maternity pay).
Statutory paternity pay and benefits
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.
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 pay rate for two weeks.
For the latest SMP and SPP rates, see Statutory rates and compensation limits.
Adoption leave and pay
Adoption leave and pay essentially mirrors maternity leave provisions. However, employers should note that:
- Adoption leave is not available to both parents. One parent is entitled to adoption leave and the other parent may take paternity leave, including same sex parents.
- An employee must be able to demonstrate that they will have responsibility for caring for the child.
- An adopter who takes adoption leave and or pay may choose to end their adoption leave and pay early and, if they qualify for it, opt into the shared parental leave and pay system in the same way as birth parents.
Most adopters will be entitled to statutory adoption pay (SAP) for 39 weeks as long as they have been working continuously for the employer for at least 26 weeks. There is no continuous service requirement for the leave, although there is a qualifying period for pay. 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 statutory paternity leave and pay and shared parental leave and pay.
Special rules apply for overseas adoptions. Foster parents are not usually eligible for adoption leave and pay.
What is the position concerning holiday entitlement during maternity leave and shared parental leave?
For most employees, paid holiday entitlement builds up during the whole maternity leave and shared parental leave period.
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.
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 holidays over
Problems may arise 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.
What happens to the level of maternity pay if the employee is awarded a pay rise?
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.
Can shared parental leave arrangements be changed?
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 can vary leave three times, although an exception applies to the notice requirements where the baby is born early.
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.
Does an employee have a right to return to exactly the same job after maternity leave?
An employee has a right to return to either exactly the same job, or in some cases, a similar one. Which right applies depends on when she returns. If she returns to work:
- after the first six months of leave, she is entitled to return to exactly the same job she was doing before her maternity leave.
- after the second six months of leave, she 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 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 it is not reasonably practicable for an employee returning from 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 as favourable as 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:
- Sex, pregnancy or maternity-related discrimination.
- Constructive unfair dismissal claims.
- Claims under the 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 with the same job title and pay, but where 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 agree matters directly or 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 (see Requesting flexible working Q&As).
Do organisations need to contact the partner's employer over shared parental leave?
The employers of parents expecting to share parental leave (SPL) are not required to communicate with each other. Admittedly the legislation enables an employer to obtain the details of the employee’s partner’s employer, but there is no need for direct communication between the two organisations.
The process for SPL is similar to that already in place for maternity, paternity and adoption leave and pay because organising SPL and pay relies on 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.
However, if an employer does end up contacting the other employer, the organisation should watch out for data protection issues, especially given the higher standards required under the General Data Protection Regulation (GDPR).
Can employers refuse shared parental leave requests?
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, provided the employee is eligible. Requests for discontinuous shared parental leave are different. These must be properly considered by employers and there is discretion to refuse requests, but it is limited.
If parents request shared parental leave in a discontinuous pattern the employer can:
- agree to the requested pattern of leave
- reject the request in its present form
- propose alternative dates for the periods of leave
- insist the employee takes the leave in a continuous block.
The following points apply:
- If the employer agrees to the request, it must write to the employee confirming the SPL dates.
- If the employer disagrees, the employer should discuss with the employee whether the request can be adapted, but the employee must not be pressurised or suffer detrimental treatment during this process.
- If no agreement is reached, the employer can refuse the employee’s discontinuous leave 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.
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.
What happens if an employee is sick at the end of the period of maternity, paternity or shared parental leave?
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, the employee should be on sick leave and receive sick pay provided they have presented a sick note.
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.
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 redundancy. (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.
If an employer enhances maternity pay, does it need to enhance shared parental pay too?
The short answer is the employer is taking a risk if men are paid differently when taking shared parental leave compared to women on maternity leave. There is now conflicting case law on this.
It is relatively common for employers to pay enhanced pay to mothers on maternity leave, but less common to enhance pay for SPL. Some case law suggests it is sex discrimination to pay different amounts for maternity leave and shared parental leave.
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.
Risks of not enhancing paternity/SPL pay packages
Government guidance states that an occupational maternity or paternity pay scheme may continue and does not have to be extended to SPL - but this has been challenged in tribunal cases.
Employers offering enhanced maternity pay benefits face a risk of sex discrimination claims under the Equality Act 2010 if they do not offer equal benefits to male employees. The legal arguments are complex because the law builds in some protection for the different treatment of women.
Benefits of enhanced paternity/SPL pay packages
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 historically only between 4-8 per cent of eligible fathers took up the offer of extra paternity leave when it was previously available, SPL could continue to 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.
What notice periods apply for delaying or cancelling paternity leave?
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.
What is the status of the employee's contract during paternity leave or shared parental leave absence?
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.
Can an employee be entitled to paid paternity leave, paid shared parental leave and unpaid parental leave?
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.)
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 can offer employees compassionate leave in these circumstances, paid or unpaid, but under the Parental Bereavement (Leave and Pay) Act 2018, which became law on 13 September 2018, employees who lose a child under the age of 18, or suffer a stillbirth from the 24th week of pregnancy, are entitled to two weeks’ unpaid leave as a right from day one of their employment.
The government has now laid regulations before Parliament which will bring the new law in to force on 6 April 2020. The leave will be paid at the statutory rate if the employee has 26 weeks’ service and will be available to take as one block, or two one week blocks, during the first year after the child’s death. The government estimates the new right will help to support around 10,000 parents a year.
The legislation is to be known as Jack’s Law, after Jack Herd, who died aged 23 months in 2010, and whose mother has campaigned for the law change ever since.
Taylor review and Good work plan
The government-commissioned Taylor review into modern working practices addressed many aspects of employment law. The subsequent recommendations suggested new guidance on the legislation protecting pregnant women and those on maternity leave and possibly more legislation to address pregnancy and maternity discrimination.
The government responded to the Taylor report on 7 February 2018, accepting most of the recommendations, and in December 2018 issued a ‘Good work plan’ on the way forward. Among its commitments is increasing transparency about maternity rights at work, and employers’ obligations towards new and expectant mothers.
(For more on draft legislation in the ‘Good work plan’ on agency workers, annual leave, and written particulars which came in to force on 6 April 2020, see ‘Future developments’ in our Employment status Q&As)
On 25 January 2019 the government produced a consultation on extending discrimination protection during pregnancy and maternity, building on evidence from the Taylor report, BEIS, the Equality and Human Rights Commission, and recommendations from the Women and Equalities Select Committee.
On 22 July 2019, the government responded to the consultation by producing a set of proposals to extend redundancy protection to:
- pregnant employees, once they have told their employer of their pregnancy
- employees returning from maternity or adoption leave within the previous six months
- parents returning from shared parental leave (although how this will operate in practice is still to be worked out).
Currently the right to be offered any suitable alternative vacancy in the event of redundancy is only available to employees on maternity, adoption or shared parental leave.
The previous government has said that legislation will be brought forward when Parliamentary time allows.