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Shared Parental Leave – are you entitled to it?

Are you entitled to Shared Parental Leave?

Your family might be able to use SPL if you are expecting a baby with your partner, or you’re expecting a child to be placed for adoption with you and your partner, and at least one of you is employed. The rights apply to mothers and fathers, married couples, civil partners and cohabiting partners, same or opposite sex. The rules don’t currently apply to grandparents.

You can quickly check if you and/or your partner are entitled to SPL by using the government’s calculator. This looks at paternity leave and maternity leave as well, so it will give you an overall picture of your options as a family. If you need to understand the rules in more detail, you can read our information below.

Key points on entitlement to SPL

Sharing leave is only possible if both partners satisfy certain conditions

An employed mother can take SPL if she is entitled to statutory maternity leave and has enough continuous service

An employed partner can take SPL if the mother is entitled to either maternity leave, SMP or MA, provided the partner has enough continuous service. So, s/he may be entitled to SPL even though the mother cannot get either maternity leave or SPL

What are the main qualifying “tests” to qualify for SPL?

We refer to two tests in this factsheet. An employee can only take SPL if s/he satisfied the continuity of employment test. The partner must also be a worker (as SPL is for working  parents) so must satisfy the employment and earnings test.

The continuity of employment test: the employee must have worked for the same employer for 26 weeks at the end of the 15th week before the EWC (expected week of childbirth) and remain employed until the week before the start of SPL

The employment and earnings test: the partner must have worked on an employed or self-employed basis in 26 of the last 66 weeks earning at least £30 per week on average for 13 of those weeks.

Even if the mother is not entitled to maternity leave (because she is no longer employed, is an agency worker or self-employed), she can end her SMP or maternity allowance early to create entitlement to SPL for her partner, provided they both satisfy the qualifying tests (see below). It is not necessary for both parents to qualify for SPL. You can split up to 50 weeks of shared parental leave between you, if you both meet the conditions. Or if only one of you is entitled, you can decide how much time to take as SPL.

How to work out the 15th week before the baby is due:
Find the Sunday before the baby is due (or the due date if it is a Sunday) and count back 15 Sundays from there. That is the start of the 15th week before the expected week of childbirth. Use the due date on the MAT B1 maternity certificate for the expected week of childbirth.

The mother (M) qualifies for SPL if:

M is an employee

M is entitled to statutory maternity leave

M has worked for the same employer for 26 weeks at the end of the 15th week before the child’s expected due date, (continuity of employment test)

M remains employed in the week before any SPL is due to start;

M has shortened her maternity leave by returning to work or providing a notice to curtail the leave

M has a partner who meets the employment and earnings test (must have worked for 26 weeks in the 66 weeks before the due date and earned £30 per week in 13 of the 66 weeks.), S/he does not need to be an employee unless s/he too wants to take SPL

P has, at the date of the birth, shared responsibility for the baby with M.

The required notice, declarations and evidence are provided by M and P

A partner (P) is entitled to SPL if:

P is an employee

P satisfies the employment and earnings test

The partner could be employed or self-employed and could have changed jobs or not worked for the same employer for the whole of the pregnancy.

M is entitled to maternity leave, SMP or maternity allowance

M satisfied the employment and earnings test and the continuity of employment test

If M is entitled to maternity leave, she cuts short her leave

If M is entitled to SMP or maternity allowance (not maternity leave), she has curtailed the maternity pay or maternity allowance period

M has, at the date of birth, shared responsibility for the baby with the partner;

The required notice of entitlement, notice to book SPL, declarations and evidence are provided by P and M.

The employee must give at least 8 weeks’ notice of the start of SPL.

Remember:  If one parent is not entitled to SPL (e.g. because she is not an employee) the other partner may still be entitled to take it if s/he is employed.

Note: It is possible for only one of a couple to take SPL provided both satisfy the qualifying tests. This parent/partner may not be able to take SPL themselves, but they need to meet these looser employment and earnings conditions in order to take SPL. If the other parent is the mother/main adopter, they will need to curtail their SMP/SAP/MA to create their entitlement to SPL and/or ShPP.

What if the mother is an employee but the father is self-employed?

The father will not be able to take SPL as he is not employed; the mother can take SPL if the father satisfies the Employment and earnings test, (i.e. has worked in 26 of the last 66 weeks earning at least £30 per week on average for 13 of those weeks).

What if the father is an employee but the mother is self-employed?

The mother cannot take SPL because she is not employed.  If the mother qualifies for maternity allowance, she can shorten this, and give her partner access to shared parental leave if he is employed and satisfies the continuity of employment test.

An example: The mother is a self-employed worker who satisfies the employment and earnings test and is eligible for maternity allowance. Her partner is an employee who satisfies the continuity of employment test. The mother is not entitled to SPL because she is self-employed. But if the mother gives up 37 weeks maternity allowance it gives up to 37 weeks ShPP (not SPL) for the father and up to 50 weeks SPL if he’s an employee and qualifies. The amount of SPL he can take is calculated by deducting from 50 weeks the number of weeks’ SMP or MA claimed. This also applies if the mother was entitled to SMP not maternity leave.

What about agency workers?

Agency workers are not usually classed as employees and are not eligible for SPL but their employed partner may be. If the agency worker satisfies the employment and earnings test, their employee partner can take SPL if they pass the continuity of employment test. Agency workers who are entitled to SMP or paternity pay may be entitled to Statutory Shared Parental Pay if they take time off to care for their child in the first year. This could apply to other atypical workers such as casuals, those on a zero hours contracts and some freelance contractors who are not self-employed.

Remember

It is the mother’s choice whether to shorten her maternity leave to enable the couple to take shared parental leave, or for just her to take SPL

It is possible to take SPL where only one of a couple is entitled to it, for example if the other is not an employee

You can also share pay with shared parental pay

A self-employed person receiving maternity allowance can transfer this to her partner to enable them to take SPL (if they qualify).

Entitlement to pay

In order to qualify for ShPP a parent must:

meet the continuity of employment test and their partner must meet the employment and earnings test

have average earnings of at least £118 per week (April 2019/20) during the calculation period (8 weeks or 2 months before the end of the qualifying week).

This is the same as the qualifying conditions for Statutory Maternity Pay (SMP) and Statutory Paternity Pay (SPP). This means that a parent who qualifies for SMP or SPP, will also qualify for ShPP as long as s/he is still employed by the same employer up to the start of the week of ShPP.

Agency workers, casual workers, zero hours contract workers and some freelance workers can qualify for ShPP if they are classed as ‘employed earners’ and meet the conditions above. You are an ‘employed earner’ ( Class 1 National Insurance is payable) if your employer pays you through PAYE and deducts tax and National Insurance contributions at source (or would do if you earned enough to pay it).

How do agency workers take ShPP if they are not entitled to SPL?

Agency workers should curtail SMP/Maternity Allowance in order to create ShPP and give notice for taking ShPP. As an agency worker is not entitled to SPL, you should agree the time off with the agency and the employer you are working for. You do not have the same rights as employees to return to exactly the same job (e.g. working for the same employer) but you should not be refused work because you have taken time off to have a baby. This also applies to other workers who qualify for ShPP but are not entitled to SPL.

If the agency worker’s partner is an employee, the agency worker can reduce her SMP/Maternity Allowance in order to create SPL/ShPP for her partner to take.

What is the mother entitled to if she is getting Maternity Allowance?

If the mother is an employee and she is getting Maternity Allowance (for example, because her earnings are too low for SMP), she will qualify for SPL, but she will not qualify for ShPP. If the mother returns to work early and wishes to take some paid shared parental leave, the mother should give notice to curtail her maternity leave and opt-in to SPL, but she should NOT curtail her Maternity Allowance if she wants to claim it later on during SPL. This is because Maternity Allowance continues to run in the background for 39 weeks, even if a mother returns to work early, although she will not receive it while she is actually working. Maternity Allowance is payable for any week of absence during the pay period if the mother is off sick or absent from work.

If the mother takes SPL, she can claim Maternity Allowance for any week of absence from work during the 39-week Maternity Allowance period, providing she has not curtailed her Maternity Allowance. However, if her partner wishes to take four weeks’ SPL/ShPP, for example, the mother must curtail her maternity leave and Maternity Allowance by four weeks in order to create SPL and ShPP for her partner.

The mother should contact the Jobcentre Plus to ask for Maternity Allowance to be paid for any week of absence. The decision-maker’s guide has not yet been amended to reflect these provisions. If Maternity Allowance is refused you should seek advice.

Do parents have to repay ShPP and enhanced shared parental pay if they do not return to work?

No, ShPP is not repayable if a parent does not return to work after SPL. All employers can claim back 92% of the ShPP paid out (103% for small employers) from HM Revenue and Customs.

If an employer pays enhanced shared parental pay there may be repayment conditions if you leave your job and you should check with your employer. Any repayment conditions must be agreed before the start of the leave and parents should be allowed to repay it in small installments. Note: you are usually regarded as being ‘back at work’ once shared parental leave period has ended, even if you are on sick leave, annual leave or unpaid leave or you change your hours of work (unless you and your employer agreed otherwise).

Can parents still get ShPP if their job ends?

If a mother is made redundant during her SMP period, she remains entitled to be paid up to a maximum of 39 weeks SMP if her job ends or she is made redundant (even if she has returned to work). If she has reduced her SMP period, in order to create some ShPP for her or her partner, she will only be entitled to the SMP that is left. For example, if the mother reduces her maternity leave by 4 weeks for her partner to take as SPL, the mother qualifies for the remaining 35 weeks of SMP (39 weeks less 4 weeks) if she is made redundant.

A parent must be employed up to the week in which SPL/ShPP starts, so if the job comes to an end (e.g. redundancy, resignation) during SPL/ShPP, the parent remains entitled to ShPP up to the end of the period of leave booked (unless s/he starts a new job). If a parent is going to be made redundant and wants to receive the remaining ShPP, s/he should book the rest of the ShPP period before their employment ends otherwise s/he will lose it.

The employer should continue to pay ShPP as if the employee was still at work. If the employer is unable to pay, is insolvent or refuses to pay you should contact the Statutory Payment Disputes Team on 0300 0560 630. See www.gov.uk/recover-statutory-payments/if-you-cant-afford-to-make-payments

Quick checker for entitlement to SPL and ShPP:

Mother/employee – on maternity leave and SMP. Partner/employee – on paternity leave and SPP

M and P can take SPL and ShPP

Mother/self-employed – on Maternity Allowance. Partner/employee – on paternity leave and SPP

M is not entitled to SPL or ShPP but is entitled to claim Maternity Allowance for any week of absence from work during the 39 week pay period. P can take SPL and ShPP

Mother/employee – on maternity leave and Maternity Allowance. Partner/self-employed – not entitled to paternity leave or pay

M can take SPL and claim Maternity Allowance for any week of absence from work during the 39 week pay period. P cannot take SPL or ShPP

Mother/agency worker – on SMP. Not entitled to maternity leave. Partner/employee – on paternity leave and SPP

M is not entitled to SPL but can get ShPP for weeks of absence from work. P can take SPL and ShPP

Mother/agency worker – on Maternity Allowance. Not entitled to maternity leave. Partner/agency worker – on SPP. Not entitled to paternity leave

M is not entitled to SPL or ShPP but can get Maternity Allowance for any week of absence from work during the 39 week pay period. P is not entitled to SPL but can get ShPP for weeks of absence from work


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