This information will be useful for those involved in either drafting or reviewing an institution’s shared parental leave policy. It will also be useful for staff who are involved in advancing equality and diversity within their organisation, for example through supporting their university’s work on Athena SWAN.
More information can be found in our guidance:
Shared parental leave regulations came into force in the UK in 2015. The purpose of shared parental leave is to provide parents with more flexibility in how they manage the care of their child during the first year of birth or adoption.
Shared parental leave recognises the role partners of mothers and adopters play in childrearing, giving it the potential to advance equality of opportunity between people of different sexes and sexual orientations as part of a wider, longer-term cultural shift that supports non-traditional families.
Shared parental leave can be used alongside, or instead of, maternity and adoption leave.
How does shared parental leave work?
To be eligible for shared parental leave, an employee must share responsibility for their child with a partner or the child’s other parent, and either the employee or the other parent must be eligible for maternity or adoption leave. There are also additional criteria for the statutory entitlement related to the length of time an employee has worked for an employer, and the amount they earn. There may also be additional contractual entitlements.
To take shared parental leave, the mother/primary adopter opts out of the maternity/adoption system at any point after two weeks (the minimum length of maternity leave). Shared parental leave must be taken within one year of the child’s birth or adoption. This leaves a maximum of 50 weeks of shared parental leave available.
Shared parental leave can be taken by parents at either the same time as each other or at different times. Parents can take shared parental leave in up to three separate blocks, and within these blocks they can take either continuous or discontinuous leave, so long as each period of work lasts at least one week.
What is the Entitlement to Shared Parental Pay?
Parents are entitled to statutory shared parental pay for up to 39 weeks of the 50 available weeks of shared parental leave, minus any weeks of maternity, paternity or adoption pay they have already received. Given that two weeks of maternity leave is compulsory, this effectively leaves 37 weeks of statutory shared parental pay available. It is up to the employer whether they wish to offer enhanced shared parental pay, over and above the statutory amount.
What are SPLIT Days?
Parents are entitled to book up to 20 Shared Parental Leave in Touch (SPLIT) days each during their shared parental leave, as a part of the ‘reasonable’ contact that employers and employees can make during a period of shared parental leave. SPLIT days are in addition to the mother or primary adopter’s Keeping in Touch (KIT) days.
What About Paternity and Adoption Leave?
Partners of mothers and adopters have the right to two weeks’ statutory paternity leave and pay, in addition to any shared parental leave they choose to take. Additional paternity leave was abolished following the introduction of shared parental leave.
Parents adopting children are entitled to take shared parental leave, no matter the age of the child they are adopting. The right to statutory adoption leave and pay is unaffected by shared parental leave.
Recent Changes in Case Law
The existing shared parental leave legislation does not require employers to pay employees anything more than statutory pay, even if they offer maternity pay that is better than the statutory minimum. This is because special treatment can be justified for the health and safety of the mother and baby following childbirth and, in some sectors, employers may be justified in offering enhanced maternity provisions to attract female workers in a male-dominated workplace (Maternity Action, 2017).
However, recent case law (see below) suggests that if an employer enhances maternity (or adoption) pay, they may wish to consider also enhancing shared parental pay to the same extent to avoid risking claims of indirect sex discrimination.
Snell v Network Rail
In an October 2016 employment tribunal (Snell v Network Rail), a father won his claim for indirect sex discrimination after his employer offered enhanced shared parental pay to mothers and only statutory shared parental pay to partners of mothers. The company did not contest the claim of indirect sex discrimination.
Mr M Ali v Capita Customer Management Ltd
In April 2018, an employment appeal tribunal (EAT) overturned an employment tribunal’s decision in the case of Mr M Ali v Capita Customer Management Ltd. The EAT decided that failure to enhance statutory shared parental pay for a male employee starting shared parental leave at a company where mothers were eligible for enhanced maternity pay did not constitute direct sex discrimination. This was based on a decision, similar to that in Mr A Hextall v Chief Constable of Leicestershire Police, that it was not possible to make a comparison between a man on shared parental leave and a woman on ordinary maternity leave for these purposes.
Mr A Hextall v Chief Constable of Leicestershire Police
In May 2018, an employment appeal tribunal (EAT) upheld an employment tribunal’s decision in the case of Mr A Hextall v Chief Constable of Leicestershire Police that failing to pay a male employee on shared parental leave the same as a female employee on maternity does not constitute direct sex discrimination.
However, the EAT raised the possibility that failing to pay male employees on shared parental leave the same as female employees on maternity leave could constitute indirect sex discrimination. They have remitted the issue to a newly continued tribunal.
Where Can I Find More Information?
You can find more information about shared parental leave in our guidance, ‘Improving uptake of shared parental leave: Guidance for UK higher education institutions and colleges in Scotland’.
The guidance provides information about how shared parental leave is working, including recent developments in case law and the current state of implementation and uptake, and recommends a range of actions that universities and colleges can take to promote shared parental leave. It also provides examples of good practice currently taking place.
A comprehensive overview of the regulations for employers and employees, including step-by-step guides, can be found in guidance from ACAS: