Determining eligibility for Shared Parental Leave (SPL)

This is the first in a series of articles about Shared Parental Leave answering the key questions and breaking down the procedure for you. In this article I will deal with the first step to take when an employee enquires about Shared Parental Leave which is to establish if the employee is eligible to take SPL.

Establish if the employee is a parent

For the purposes of Shared Parental Leave a parent is;

Birth child = mother and father, or person who at the date of the child’s birth is the mother’s spouse, civil partner or partner. Therefore they need not actually be the child’s biological father to qualify.

Adopted child = the person who the child is placed with or where there are two people matched with a child jointly the person who primary adopter is the person who elects to be the adopter for the purposes of adoption and paternity regulations. The second adopter is the person who at the date of placement of the child is the primary adopter’s spouse, civil partner or partner.

For the purposes of Shared Parental Leave regulations a Partner is a person (whether the same sex or a different sex) who lives with the Mother or Primary Adopter and the child and is in an enduring family relationship. A Partner cannot be a child, parent, grandchild, grandparent, sibling, aunt, uncle, niece or nephew of the Mother or Primary Adopter.

Mother’s eligibility to take Shared Parental Leave – on the birth of a child

She must:

1. Have the required continuous service, which is to have been employed for 26 weeks’ at the end of the 15th week before the expected week of childbirth and still be in employment.
2. At the date of child’s birth, have main responsibility for the care of the child.
3. Be entitled to statutory maternity leave in respect of the child.
4. Curtail her maternity leave, either by returning to work or by serving a maternity leave curtailment notice not less than eight weeks before she wants her maternity leave to end.
5. Give her employer:
   • a notice of entitlement and intention to take Shared Parental Leave;
   • if requested, provide a copy of the child’s birth certificate;
   • if requested, provide the name and address of the Father/Partner’s employer;
   • a period of leave notice.

The Father/Partner must also satisfy certain conditions;

1. 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.
2. At the date of the child’s birth, have responsibility for the care of the child (in addition to the child’s mother).
   

   Father/Partner’s eligibility to take Shared Parental Leave – on the birth of a child

The Father/Partner must:

1. Be an employee with 26 weeks’ employment at the end of the 15th week before the expected week of childbirth and still be in employment.
2. At the date of child’s birth, have responsibility for the care of the child (in addition to the child’s mother).
3. Give their employer:

• a notice of entitlement and intention to take Shared Parental Leave;
• if requested, a copy of the child’s birth certificate;
• if requested, the name and address of the mother’s employer;
• a period of leave notice.

The Mother must also satisfy certain conditions;

1. 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.
2. At the date of the child’s birth, have responsibility for the care of the child (in addition to the child’s father).
3. Be entitled to statutory maternity leave, statutory maternity pay, or maternity allowance in respect of the child.
4. Curtail the statutory maternity leave, pay or maternity allowance by serving a curtailment notice or have returned to work.

Primary Adopter’s eligibility to take Shared Parental Leave – on the adoption of a child

As with the birth of a child in order to be eligible to take shared parental leave the Primary Adopter and Partner must satisfy certain conditions.

The Primary Adopter must:

1. Have the required continuous service, which is to have been employed for 26 weeks’ at the end of the week in which they were notified of having been matched for adoption with the child and still be employed.
2. At the date when the child is placed with them for adoption, have the main responsibility for the care of the child (apart from any Partner).
3. Be entitled to statutory adoption leave.
4. Have curtailed their statutory adoption leave, either by returning to work or by serving a curtailment notice.
5. Give their employer:

• a notice of entitlement and intention to take Shared Parental Leave;
• if requested, a copy of documents issued by the adoption agency notifying the child’s placement;
• the name and address of their Partner’s employer;
• a period of leave notice.

The Partner must also satisfy certain conditions, they must;

1. 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.
2. At the date the child is placed for adoption, have responsibility for the care of the child (in addition to the Primary Adopter).

Partner’s eligibility to take Shared Parental Leave – on the adoption of a child

In order to take leave the Primary Adopter’s Partner must:

1. Have the required continuous service, which is to have been employed for 26 weeks’ at the end of the week in which they were notified of having been matched for adoption with the child and still be employed.
2. At the date when the child is placed with them for adoption, have the main responsibility for the care of the child (apart from any Partner).
3. Give their employer;

• a notice of entitlement and intention to take Shared Parental Leave;
• if requested, a copy of documents issued by the adoption agency notifying the child’s placement;
• the name and address of the Primary Adopter’s employer;
• a period of leave notice.

The Primary Adopter must also satisfy certain conditions, they must;

1. 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;
2. at the date the child is placed for adoption, have responsibility for the care of the child (in addition to the Partner);
3. be entitled to statutory adoption leave or statutory adoption pay in respect of the child
4. curtail the statutory adoption leave and/or pay by serving a curtailment notice or have returned to work.

In summary

The key points you need to look at when establishing eligibility is:

• Do they have responsibility for a child.
• What are the dates of employment.
• What is their average pay.
• If they would be entitled to normal maternity / adoption leave / pay.
• Have they ended or given notice to end the maternity / adoption leave / pay.

If you have any questions, comments or experience of the Shared Parental Leave scheme in practice then please leave a comment below or email alison@realemploymentlawadvice.co.uk