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Over the last few weeks, our employment team have been delivering the latest employment law updates at HRXchange events nationwide to HR professionals and managers.

A key feature of this Spring’s update was the new Shared Parental Leave (SPL) and Shared Parental Pay (ShPP) regimes, introduced last December in legislation that comes into effect for parents or adopters of babies due to be born or placed for adoption on or after 5 April 2015.

Here are our top three Q&As that will hopefully demystify the common queries.

1. If we have enhanced maternity pay, does that mean we have to enhance ShPP?

Many commentators are encouraging employers to take comfort from a case from last year[1], in which a male claimed direct and indirect sex discrimination because he was only paid the statutory minimum rate when he took additional paternity leave, while a mother on maternity leave would have been paid full pay for up to 52 weeks.

His direct discrimination claim failed because he was unable to show that he had been treated any less favourably than a female spouse taking additional paternity leave and his indirect discrimination claim failed because (while the employer agreed that there was a disadvantage for men), it was able to give detailed evidence that justified the difference in treatment.

It is important to note that the employer in this case was able to provide the employment tribunal with detailed statistical evidence showing how its legitimate aim (of encouraging more females into a male-dominated workforce) had been furthered by its decision to enhance maternity pay.

You should make sure that you clearly identify and document the business reasons for any enhanced maternity pay policy and make sure you gather and document relevant statistics showing its impact. Not only is this good business practice, careful consideration and communication of your rationale is good employee relations and could help avoid claims.

2. How do we carry out checks to make sure both parents are eligible to SPL and ShPP?

It is expected that you will check that your employee meets the continuity of employment test (26 weeks’ employment) and the average weekly earnings test for ShPP. If the employee is the mother and she qualifies for statutory maternity pay, or the employee is the mother’s partner and he or she qualifies for statutory paternity leave or pay, the tests are exactly the same and it is assumed that you will already have carried them out.

It is for the employee to determine for themselves that they are eligible (the Government has created a helpful online tool for this – https://www.gov.uk/pay-leave-for-parents) and to provide you with a signed declaration that they are eligible and that the information they have given you is correct.

You are entitled to take the employee’s notifications and declarations on trust. This may seem counter-intuitive, especially as we are so used to having to make checks (for example checking eligibility to work in the UK), but the legislation[2] and the government’s guidance[3] is very clear – there is no obligation on the employer to check eligibility.

Our advice to employers is that you should set out clearly in your SPL and ShPP policy what information you require from employees and, even better, provide templates for employees to complete to give you the required information. That way, you can control what information you are getting and everyone’s expectations are managed.

3. What do we do if we find out that our employee is falsely claiming SPL or ShPP?

You will not be liable if your employee commits a fraud. You are entitled to rely on the information provided to you.

If a fraud does come to light, you should use your own disciplinary policies and procedures in the same way that you would in other cases of misconduct. Many employers will include fraud, or deliberate falsification of documents, as examples of gross misconduct and falsely claiming or over claiming SPL and/or ShPP would be no different.

You can recover any overpayment of ShPP from your employee in the same way that you currently recover overpayment of any other statutory payment.

The Government has said that it wants to make the new SPL and ShPP systems as ‘simple to use as possible’. But those of us who have read the various pieces of legislation and guidance may question whether this has been achieved.

If you need further guidance we have a toolkit for employers who would like assistance with their SPL and ShPP policy and template notifications. For more information, email blogs@gateleyuk.com.

This post was edited by Helen Webster.

[1] Shuter v Ford Motor Company Ltd [2014]

[2] The Shared Parental Leave Regulations 2014 and The Statutory Shared parental Pay (General) Regulations 2014

[3] BIS Shared Parental Leave and Pay: Employers’ Technical Guide, September 2014


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This blog is intended only as a synopsis of certain recent developments. If any matter referred to in this blog is sought to be relied upon, further advice should be obtained.