Shared parental leave and term time only working

We are receiving an increasing number of queries from schools relating to the use of shared parental leave (SPL) as staff look to maximise their leave and pay entitlements. Unlike maternity leave, which is taken as a continuous period, SPL can be taken in up to three separate blocks with breaks in between these blocks where employees can return to work.

Similar to the common practice of teaching staff ending their maternity leave shortly prior to the summer holidays in order to benefit from full pay over the summer break, it is becoming more commonplace for teachers to structure SPL so as to end one block of SPL before the start of a school holiday period and opting to then take a further block immediately once the holiday period has ended.

We explore below the legal position and practical implications.

This note focuses on SPL in the context of birth parents, although similar rules apply in respect of individuals using a surrogate to have a baby or adopting a child.

What is SPL and pay?

SPL was introduced in 2015 to enable working parents to share leave and take time off in a more flexible way than is available when taking maternity leave.

Eligible parents can get up to 50 weeks of SPL and up to 37 weeks of shared parental pay (SHPP). How much SPL and SHPP eligible parents get, depends on how much maternity entitlement the birth parent has taken.

There are a variety of ways in which eligible parents may use SPL, for example:

• The birth parent returns to work early from maternity leave and takes SPL at a later date
• The birth parent returns to work and their partner takes SPL
• Both parents are off at the same time
• Both parents share SPL evenly and are off at different times
• Both parents return to work at the same time and take SPL at a later date.

SPL eligibility

The eligibility criteria for SPL are complex. However, the following key requirements must be met:

• There must be two parents sharing responsibility for a child
• The birth parent must do one of the following:
• End their maternity leave and return to work
• Give their employer notice to ‘curtail’ (end) their maternity leave early
• By law, the birth parent must still take at least 2 weeks’ maternity leave
• The parent who is to take SPL must:
• Be an employee
• Have been continuously employed for 26 weeks up to and including the 15^th week before the week in which their baby is due (the qualifying week)
• Still be employed by the same employer when the SPL begins.
• The partner of the parent who is to take SPL must:
• Have been an employed or self-employed earner in the UK for a total of 26 weeks in the period of 66 weeks leading up to the week in which the child is due
• Have earned an average of at least £30 a week across any 13 weeks of the 66-week period.

If both parents are eligible, they can choose how to use SPL between them.

Continuous or discontinuous SPL

An employee can take SPL as either ‘continuous’ leave or ‘discontinuous’ leave.

Continuous leave is a number of weeks taken in a single unbroken period – for example, six weeks in a row. Employees can take up to three separate blocks of continuous SPL.

Alternatively, an employee may request two or more periods of discontinuous leave. This means asking for a set number of weeks of leave over a period of time, with breaks in between where the employee returns to work – for example, an arrangement where an employee will take six weeks of SPL and works every other week for a period of three months.

A notice to book either continuous or discontinuous SPL must be given at least eight weeks before the leave can be taken.

Responding to requests

Assuming the eligibility and notification requirements are met, employers cannot refuse a notice to take a period of continuous SPL. Requests for discontinuous SPL can be refused, for example if it’s not suitable for the workplace.

Requesting blocks of SPL to correspond with school terms

As noted above, schools are increasingly receiving requests from term time only staff for 3 continuous blocks of SPL to coincide with the school terms. This serves to maximise the employees leave and pay entitlement by making use of the school holiday periods.

In summary, periods of SPL are structured to coincide with term time, with the employee  returning to work (and receiving full pay) during periods of school holiday. This can be used to extend an employee’s entitlement to leave and pay.

As employees are entitled to take up to 3 separate blocks of continuous SPL, this practice is legitimate and cannot technically be refused by a school. It is an approach that is being actively promoted to teachers and other term time only staff online and this may explain the increase in the number of requests of this nature.

The result is that schools may find that there are increased costs associated with a period of SPL structured in this way, accounting for associated cover.

Is there anything a school can do to discourage such requests?

As noted above, it is legitimate and in accordance with the law for an employee to structure a request for SPL in this way and, where the eligibility and notification requirements are met, such a request cannot be lawfully refused. This often comes as a surprise to the school in question.

It may be possible to require a member of staff to undertake substantive work during school holiday periods following a return from SPL. However, such a request would need to reflect the terms of the employment contract and the established custom and practice. Any requirement for an employee taking SPL to undertake substantive work in school holiday periods following a return to work, where this does not reflect the established custom and practice, could be considered discriminatory.

Many schools that provide a contractual right to maternity pay, that exceeds the statutory maternity pay entitlement, have also introduced similar policies in respect of enhanced SHPP.

However, some schools who provide enhanced maternity pay may wish to just provide statutory SHPP without any enhancement. Recent case law has established that this is permissible and that it is not direct or indirect discrimination for an employer to pay a man taking SPL less than a woman on maternity leave.

With this in mind, schools that offer an enhanced entitlement to SHPP in line with maternity policies may wish to consider reducing that entitlement to address the cost implications of SPL requests of the nature outlined above.

Such a change would not, however, be without risk. Although current case law is clear that it is permissible to apply a distinction between maternity and SPL benefits, this could be subject to challenge, particularly in the context of scaling back an already enhanced entitlement to SHPP.

Schools will most likely need to consult with staff about the proposed change and there may be employee relations issues associated with applying a detrimental change to an existing staff benefit. Legal advice should be sought where a school is contemplating taking this approach.

On a more practical level, although a request for up to three continuous blocks of SPL cannot be refused, a school may wish to discuss such a request with an employee and highlight any concerns and operational impact. Whilst care should be taken not to discourage an employee from taking SPL, it may be that a compromise position can be agreed with the employee that reduces the impact on the school.

Shared parental leave policies

Although not a legal requirement, we recommend that schools have a written policy on SPL.

This is a complex area and legal advice should be sought. Please contact Oliver Daniels or Rachel Parkin.