This article covers employment protections while on or seeking to take Shared Parental Leave (SPL). For more information your rights and benefits during SPL, see our article on rights during shared parental leave.
Right not to be disadvantaged
You have a right not to be put at a disadvantage by your employer – “not to be subjected to any detriment” – because you took or sought to take Shared Parental Leave (SPL).
This means that your employer cannot disadvantage you because you have taken SPL or have tried to take SPL, or because your employer believed you were likely to take SPL, whether or not that was the case. Even if you are not entitled to SPL but mistakenly thought you were, your employer is not allowed to penalise you for seeking to take SPL (although would be entitled to refuse you the leave).
Similarly, your employer should not disadvantage you because you benefited from terms and conditions of your employment other than pay (for example, you had the use of a company car, or you accrued paid annual leave), during a period of SPL.
What counts as a disadvantage or a detriment?
In essence, any action or inaction by your employer that results in you being at a disadvantage compared to other workers counts as a disadvantage or ‘detriment’. Obvious examples involve financial loss – for example, a reduction in pay, or the loss of a promotion opportunity – but it doesn’t have to. Threats of disciplinary action, even if not acted on, or a refusal of a training opportunity, or allocating you less prestigious tasks, because of an SPL-related reason, can be unlawful detriments.
Actions by co-workers – such as bullying – are not covered by the definition of “detriment”. However, in some circumstances the actions of co-workers could amount to discrimination for which your employer bears responsibility, especially if your employer is aware of the behaviour.
Right to return to your job
Your right to return to your job depends on how much leave you have taken. If you return after a period of statutory leave (whether maternity, paternity, adoption or SPL) of less than 26 weeks, you are entitled to return to the same job.
If you have taken more than one period of SPL, you have the right to return to the job you were doing before your first period of SPL. A refusal to allow you to return after SPL in accordance with the SPL Regulations may amount to a detriment or an unfair dismissal.
If you return to work after more than 26 weeks of leave (including a combination of maternity, paternity, adoption or SPL), you are entitled to return to the same job unless it is not reasonably practicable, in which case you must be offered a suitable and appropriate job on equivalent terms and condition.
The right to return to the job in which you were employed before your absence means a right to return:
- With your seniority, pension rights and similar rights as they would have been if there had been no absence.
- On terms and conditions not less favourable than those which would have applied if there had been no absence.
However, if any of these aspects of your job would have changed had you remained in employment and not taken leave, then the right to return is to the job including those changes.
For more information, see our article on returning to work at the end of maternity leave.
Frequently asked questions
Below are answers to some of the most common questions we get on our helpline.
Can my employer dismiss me for taking Shared Parental Leave?
The law specifically protects employees from being dismissed for a reason related to SPL. If the reason or principal reason for your dismissal is because you have taken SPL, sought to take SPL, or your employer believed you were likely to take SPL, that would make it an unfair dismissal, regardless of how long you had been employed by your employer. It would be unfair to dismiss you because your employer did not wish to pay statutory shared parental pay (notwithstanding your employer would be reimbursed 92% or 103% of it by HMRC).
Similarly, a dismissal, whose reason or principal reason was because you had benefited from terms and conditions of your employment other than pay while on SPL, or because you had worked, considered working, or refused to work a SPLIT day, would also be unfair.
As with many other employment rights, your employer is not entitled to dismiss you because you alleged – in good faith – that your employer has infringed your rights in relation to SPL. Such a dismissal would be unfair. It would not make any difference if in fact you were genuinely mistaken about the right in question, and/or whether or not it had been infringed.
For agency workers who are not employees, any termination of an assignment due to SPL-related reasons would amount to a “detriment” (see above) rather than an unfair dismissal but would also be unlawful.
See our article on dismissal during pregnancy, or maternity, adoption or shared parental leave.
What can I do if my employer doesn’t pay my Shared Parental Pay?
If your employer refuses to pay your Shared Parental Pay (ShPP), you should contact the HRMC Statutory Disputes Team. For more information, see our article on what to do if my employer does not give me statutory pay?
Am I protected from discrimination if I take Shared Parental Leave?
It is unlawful for employers to discriminate against employees on the basis of “protected characteristics”, namely age, disability, gender reassignment, marriage and civil partnership, pregnancy and maternity, race, religion or belief, sex and sexual orientation.
Your employer must not treat you less favourably in relation to SPL because of one or more of these protected characteristics. Similarly, your employer must ensure that their policies and practices in relation to SPL and pay are not directly or indirectly discriminatory.
For more information, see our article on Discrimination, Harassment and Victimisation.
I’m being made redundant while on Shared Parental Leave
For more information on your rights if you are being made redundant while on SPL, see our article on redundancy while pregnant, or on maternity, adoption or shared parental leave
What should I do if I think my employer has treated me unlawfully?
See our article on what to do if you are having problems at work.
What if I want to resign after taking Shared Parental Leave?
See our article on resigning during pregnancy and maternity or shared parental leave.
This advice applies in England, Wales and Scotland. If you live in another part of the UK, the law may differ. Please call our helpline for more details
If you have further questions and would like to contact our advice team please use our advice contact form below or call us.