BIS and ACAS publish more detailed guides to Shared Parental Leave and Pay

Posted by Ruth Christy on
On 18 September, the Department of Business, Innovation and Skills published an 'Employers' Technical Guide to Shared Parental Leave and Pay'. (For more details on what the new Shared Parental Leave (SPL) regime entails, please see our previous article on this topic).

This Guide provides much more helpful detail than the previous BIS 'Employer Guide' which was much more of an overview (as acknowledged in the Technical Guide). It contains a number of useful pointers for employers on the detail of SPL and Shared Parental Pay (ShPP), together with a number of Frequently Asked Questions and worked examples.

Following that, ACAS has also produced Shared Parental Leave: A Good Practice Guide for employers and employees along with a number of helpful template documents. Whilst both this and the BIS Technical Guide include information the employer might need, the ACAS Good Practice Guide also provides a section for employees to consider the reasons why SPL may or may not be appropriate for them in their circumstances.

One of the most interesting practical points addressed in the BIS Technical Guide is what responsibility employers have to check the information they are given. The Guide makes clear that it is the employee's responsibility to check and make the declaration that they are eligible for SPL and ShPP, and provide the required declaration from their partner. Employers are not required to check or confirm information given by the employee's partner to determine if their employee is eligible for SPL or ShPP (pages 8 & 14). On this subject, the ACAS Good Practice Guide notes that if the employer does decide to contact the partner's employer, they should ensure that their actions are consistent and fair, and consider data protection obligations together with their duty of confidentiality.

The BIS Technical Guide also points out that employers are not liable if the employee or his/her partner lies (page 46). Although there is no specific obligation to do so, it is expected that employers will check the employee satisfies the continuity of employment test (26 weeks) and the 8 weeks average weekly earnings test. Other than this, employers are not expected to carry out detailed checks, but are entitled to rely on the information they are given. Employees who deliberately defraud the system could face a significant financial penalty and be required to pay back overclaimed ShPP. HMRC will use a risk-based regime to identify those who have overclaimed (claimants can be linked to each other via their National Insurance numbers). If fraud is detected, this could be grounds for disciplinary action by the employer in the usual way.

Other points made in the Technical Guide are:

  • Employers should if possible talk to employees at the point that the employee gives the 'Notice of entitlement and intention to take Shared Parental Leave' to discuss what leave period(s) the employee has in mind and to find a solution that will work from both sides (pages 16 & 42). For example, the employee may want to alternate periods of leave with their partner. Although the employer is under no obligation to allow discontinuous periods of leave, the employee could nevertheless achieve this by giving three separate period of leave notices. Discussing it with the employee before the period of leave notice is submitted could result in a mutually acceptable solution which enables both parties to plan ahead, particularly if the employee is trying to tie in with their partner's SPL. However the employer is under no obligation to ensure that leave arrangements tie in with the other partner or discuss it with the other employer.
  • If the partner has taken SPL and received ShPP, and the mother then revokes her curtailment notice, the employer is not supposed to recover the ShPP from the employee (it is not considered to be overpaid because the partner was entitled at the time he was paid). The employer can reclaim it from HMRC in the usual way.
  • If the parents separate, SPL and ShPP can still continue if they are each caring for the child in the week that they take that leave and pay (page 47) – the employer is not required to concern itself with the employee's domestic arrangements.
  • Employers could change certain parts of the statutory procedure, for example the notification requirements (e.g. how much notice is required, the number of permitted variations etc) but it must be more generous that the statutory regime.

Unsurprisingly, the ACAS Good Practice Guide approaches SPL more from an employment relations perspective. The Good Practice Guide:

  • Suggests that employers should take the initiative to raise the option of SPL with employees who give notice to take maternity, adoption or paternity leave. 
  • Suggests that it would be beneficial for the employee and employer to have a meeting about 'booking' SPL (i.e. the period of leave notice) and what that should involve. 
  • States that where an employer is not minded to agree to discontinuous leave, the employer ‘should always seek to arrange a meeting to discuss the request with the employee’. If it still refuses, the employer should propose alternative dates, confirm their refusal, and provide information on what options are now available to the employee. None of these are legal obligations and go beyond the employer's statutory obligations. In fact, an employer is not even obliged to respond to a request for discontinuous leave, although, as ACAS points out, this is not good practice.
  • Raises the possibility of employees being accompanied to the various discussions that might take place. Again, there is no legal obligation for employers to allow this (unless it amounts to a reasonable adjustment for a disabled employee).
  • Emphasises that line managers must be fully aware of the rights and entitlements of employees seeking to take SPL, as well as the employer's procedures, in order to be proactive and supportive to employees. Clearly this represents a significant training task ahead of next April.

Neither the BIS Technical Guide nor the ACAS Good Practice Guide are statements of the law, and the various regulations on Shared Parental Leave and Pay would take precedence over what they say. However, they are both useful practical resources which include FAQs and worked examples of booking leave, refusing leave etc. The BIS Technical Guide also goes through the various permutations of the different eligibilities, for example where an individual may not be entitled to maternity leave but is entitled to Statutory Maternity Pay or Maternity Allowance.

On 14 October a number of other draft regulations were also published making the necessary amendments to bring the new SPL regime into effect. We will continue to keep you updated as to their effect.

Although the new regime of SPL only applies for children expected or placed for adoption on or after 5 April 2015, the majority of the regulations come into force on 1 December. Employees hoping to take advantage of SPL could already be pregnant. ACAS suggests that it is a good idea to produce an SPL policy, in consultation with employees, or include it in other family friendly policies. It is important for employers to begin drafting this and make the relevant changes to all their family friendly policies in good time and be prepared to answer questions.

We can amend your policies and handbooks to comply with the new law, or replace them with new versions, whichever is appropriate. We can also provide bespoke training for HR staff and/or line managers on SPL covering such issues as eligibility for SPL, the notification requirements and managing the SPL process from the initial discussions with the employee through to the leave itself.

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Ruth provides guidance for clients and keeps them up to date with the fast pace of change in employment law.

Ruth Christy
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