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Emma O'Connor
Emma O'Connor,
HEAD OF TRAINING
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Changes to Family Friendly Rights (Part 2)
27 August 2014

New adoption rights

Under the Children and Families Act 2014 and the Paternity and Adoption Leave (Amendment) Regulations 2014 (“PALA”), from 5 April 2015 both single and joint adopters will be eligible for paid time off to attend adoption appointments. This right, which applies only to employees and eligible agency workers, allows up to a maximum of 6.5 hours for each adoption appointment.

Adopters will be protected against suffering a detriment or being dismissed in relation to taking time off for adoption appointments. They will have the right to bring a claim if their employer either unreasonably refuses to allow this time off or refuses to pay them for their time.

Key elements of shared parental and adoption leave

The current requirement for employees to have 26 weeks’ service before being entitled to take adoption leave will be removed for adopters of children due to be placed for adoption on or after 5 April 2015 and from that date statutory adoption leave pay will be brought into line with statutory maternity pay.

Under the Shared Parental Leave provisions discussed below, both adoptive parents will be eligible to share adoption leave and pay whereas they are currently only available to the one parent listed as the primary adopter.

However, where an adopter has taken paid time off to attend adoption appointments, under the new PALA provisions, they will not be eligible to also take Paternity leave.

Key elements of the Shared Parental Leave Scheme

Currently…

At the moment, all pregnant employees have the right to take up to 52 weeks maternity leave, of which the first two directly after the birth are compulsory. Provided they fulfil the notification requirements, this right applies regardless of their length of service. However it does not apply to those who are self-employed.

Statutory maternity pay (SMP) is available if the employee has at least 26 weeks continuous service and is payable for 39 weeks of maternity leave at a rate of 90% of average earnings for the first six weeks and at the “prescribed rate” (or earnings related rate if lower) for the remainder. A woman on maternity leave is entitled to ten Keeping in Touch (“KIT”) days without breaking her maternity leave.

Meanwhile, the father of the child (/adopted child) or husband/partner of a pregnant employee is currently entitled to one single or two consecutive weeks of paid Ordinary Paternity leave (“OPL”) within 56 days of the birth/adoption, provided they are an eligible employee with 26 weeks continuous service and have fulfilled the notice requirements. During OPL, they are entitled to their usual contractual rights (except those relating to remuneration) and have the right to return to their same job, unless it is not reasonably practicable to allow them to, in which case they have the right to a suitable alternative job on terms and conditions not less favourable than before.

Currently they also have the right to take Additional Paternity Leave (APL), which is conditional on the mother of the child having the right to maternity leave, statutory maternity pay or maternity allowance. It allows the father/partner to essentially “use up” any additional maternity leave allowance or statutory maternity pay entitlement left over where the mother returns to work early.

The minimum allowed period of APL is two weeks and this must be taken between 20 weeks – 12 months after the birth/date of adoption. Those on APL have ten KIT days. They have the right to return to the job they were previously employed in or, failing this, another job which is suitable and appropriate to them.

They have the right not to be subjected to a detriment for taking OPL or APL or for refusing to take KIT days and it will be automatic unfair dismissal to force them do so.

From 5 April 2014, the right to OPL will remain but APL will be abolished.

Parental leave

Not to be confused with Shared Parental Leave, Parental Leave can be taken in addition to maternity, paternity and adoption leave. It is only applicable to employees and entitles them to up to 18 weeks of unpaid leave, which can be taken in any way they wish, up to the child’s fifth birthday (or 18th birthday where the child is disabled).

Parental Leave can be taken by either parent/adopter. Although it is unpaid, those on Parental Leave continue to benefit from all their other contractual rights and are entitled to return to the same job (or suitable alternative).

When the new legislation comes in on 5 April 2015, the new Shared Parental Leave scheme will not affect the right to take Parental Leave.

The new Shared Parental Leave Scheme

The new Shared Parental Leave (SPL) scheme will be implemented by the Children and Families Act 2014 and will apply to parents of children due to be born, or to be adopted, on or after 5 April 2015. As a result, the new scheme could apply from December 2014 for babies who are born prematurely.

Under the new scheme, both parents/partners/adopters will be able to share leave after the birth or adoption of a child. The first two weeks after the birth are compulsory maternity leave and must be taken by the mother. The remaining 50 weeks can be divided by the parents in the proportions they wish (as long as they are at least a week long).

The partners can take SPL either at the same time or separately. They are entitled to up to three switches between the parents (although more can be agreed if the employers are willing) as long as the leave is taken between the birth and the child’s first birthday, or within one year of adoption.

The default position will remain for the pregnant employee to take maternity leave in one continuous block unless she notifies her employer otherwise. Those wishing to take advantage of the Shared Parental Leave provisions must notify their employer at least eight weeks’ before the birth of their intention to end maternity leave and start SPL. A mother can change her mind about whether to opt for SPL within six weeks of the birth, but otherwise the decision to take SPL will be binding.

Employees should give non-binding indications of their expected patterns of leave when they first notify their employer of the intention to take SPL and must give their employers eight weeks’ notice each time they propose to switch.

Quite how this works out in practice remains to be seen!

Interestingly, although there is no length of service requirement in order to be entitled to Maternity Leave, the parties will need 26 weeks continuous service each by the 15th week before the expected birth date in order to be eligible for SPL.

If the couple qualifies for statutory maternity pay, maternity allowance or statutory paternity pay, they will be entitled to Statutory Shared Parental Pay (paid at the same rate as Statutory Maternity Pay) on the first 39 weeks of SPL.

The new provisions also provide each parent with 20 shared parental leave in touch days on top of the existing 10 Keeping in Touch (“KIT”) days currently provided for maternity leave and OPL.

Those returning from SPL are protected from detriment and it will be automatically unfair to dismiss them for reasons connected to their SPL.

Out with the old….

From 1 December 2014, the Paternity and Adoption Leave (Amendment) Regulations provisions will prevent employees taking Additional Paternity Leave where they have already taken Shared Parental Leave. Parents of babies with an expected birth date (or adoption date) of 5 April 2015 but who are born prematurely will be able to choose between taking either APL or Shared Parental Leave from 1 December until 4 April 2015. They cannot take both in relation to the same child. However, from 5 April 2015, the right to take Additional Paternity Leave will be abolished.

Points to note:

An employee returning from SPL will have enhanced protection from redundancy - they will have the right to return to the same job, no matter how many periods of leave they have taken, provided it was for 26 or fewer weeks in total. If they have taken greater than 26 weeks leave, they will only have the right to return to a same or similar job, as is currently the situation with Maternity, Paternity and Adoption leave returners.

Problems

An important issue for employers will be keeping track of periods of intended SPL in order to calculate that the correct salary is paid and to ensure that the correct cover is arranged. The government has said it intends this scheme to be as informal as possible and specifically states that the parents respective employers will not need to contact each other but inevitably it will be open to abuse without proper ways of recording and checking whether SPL is in fact being taken when an employee claims.

Next steps

Some of the details regarding the practical application of this scheme are still being finalised and therefore we await further government guidance, which is expected during the Autumn. That being said, the Shared Parental Leave scheme could apply from 1 December 2014 and employers will need time to prepare for the changes. Employer’s should start reviewing their Maternity, Paternity, Adoption and Parental leave policies now in readiness for the new scheme.

For further information, please contact our Employment Team on 0118 952 7284 or submit an enquiry.

Consistent with our policy when giving comment and advice on a non-specific basis, we cannot assume legal responsibility for the accuracy of any particular statement. In the case of specific problems we recommend that professional advice be sought.

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