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The Employment Law behind Shared Parental Leave

1 December 2014 saw shared parental leave become law, meaning that for babies due on or after 5 April 2015, eligible women will be able to curtail their right to maternity leave so that their partner can take shared parental leave. 50 weeks’ leave and 37 weeks’ pay will be able to be shared by eligible parents, with adoptive parents being subject to similar rules.

An employed mother’s entitlement to 52 weeks’ maternity leave and 39 weeks’ statutory maternity pay or maternity allowance will not change. However, an eligible mother will also have the option of bringing an early end to her maternity pay and – with her partner or the father of the child – opting for shared parental leave rather than maternity leave.

If the qualifying requirements are met by both members of the couple, it will need to be decided between them how to divide their shared parental leave and pay entitlement. It should be noted that while fathers and a mother’s or adopter’s partner will still be able to take advantage of two weeks’ paid paternity leave, there will no longer be the option of additional paternity leave, shared parental leave having replaced it.

Shared parental leave was devised with the aim of giving parents greater flexibility with regard to how the care of their child is shared in the first year after birth or adoption. There will be a pot of leave that parents can share. They may decide to be off work at the same time, for example, take it in turns to have leave periods caring for the child, or a combination of both.

A mother or adopter will qualify for shared parental leave if they are entitled to, and have also given notice to curtail their maternity leave or adoption requirements, while also sharing the main responsibility for looking after the child with the child’s partner or their father. Parents will not be eligible to take shared parental leave unless they are employed and pass the continuity of employment test. In turn, the family’s other parent will be required to meet the employment and earnings test.

Both parents will have the option of making use of the pot of shared parental leave if they satisfy the continuity of employment test requirement. However, shared parental leave can still be used by a family where the eligibility criteria is only met by one parent. For example, a self-employed parent, who would not be entitled to shared parental leave, could still allow the other parent in the family to qualify if they pass the employment and earnings test.

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