Shared Parental Leave: Overview

Last updated: 14 Apr 2021

This article provides an overview of Shared Parental Leave (SPL) and Pay (ShPP). For more information, see our other articles on sharing leave with a partner or splitting up leave and eligibility for leave.

Note: The provisions for adopters and parents of a child born through surrogacy are very similar so for simplicity we only refer in this article to parents (birth parent and partner), which includes same-sex couples. For more information, see our article on Shared Parental Leave for parents using adoption or surrogacy.

This article covers:

What is Shared Parental Leave?

Shared Parental Leave (SPL) gives parents greater flexibility in how they care for their child. SPL allows birth mothers to share a portion of maternity leave and pay with their partners to care for children from birth until their first birthday. SPL can also be used by parents who are adopting or having a baby through surrogacy.

Birth parents are entitled to 52 weeks statutory maternity leave and 39 weeks Statutory Maternity Pay (SMP) or Maternity Allowance (MA). Birth parents can share a portion of maternity leave and pay, and Shared Parental Leave can be created from the untaken weeks of maternity leave and pay.

Partners (if eligible) are entitled to 2 weeks’ paternity leave and pay, which is separate and not included in SPL.

How much leave can be shared?

The first two weeks of maternity leave and pay are compulsory – so eligible parents can share up to 50 weeks of SPL and up to 37 weeks of Shared Parental Pay (ShPP). How much SPL or ShPP eligible parents can take depends on how much leave the birth parent has taken.

How and when leave and pay are shared is up to the parents, as long as the leave is taken within the first year after birth of the child. Partners can be on maternity leave and SPL at the same time, or concurrently.

What if the birth partner is not entitled to maternity leave?

Even where birth mothers are not entitled to maternity leave (for instance, because she is self-employed or an agency worker) she can end her SMP or MA early to create entitlement to SPL for her partner, provided they both satisfy the qualifying tests (see below). For more information, see our article on eligibility for leave and sharing leave with a partner or splitting up leave.

How can we share leave?

SPL can be taken in any way eligible parents would like, as long as leave is taken within the first year of birth (or adoption) and it is within the rules of the scheme. For instance:

  • Both parents can use SPL to stay off work at the same time, splitting the leave evenly or unevenly
  • Both parents can use SPL and stay off work at different times, for the same or different lengths of leave
  • The birth parent can return to work early and take SPL at a later date
  • The birth parent can return to work early and her partner can take SPL

For ideas on how to share leave with your partner, see our case studies and range of short films on Shared Parental Leave.

For more detailed information, see our article on sharing leave with a partner or splitting up leave.

Things to consider when deciding how to share leave

  • Do you want to share the caring of your child with your partner in the first year?
  • Do you want time off together or separately?
  • Do you want to take leave all at once, or in blocks throughout the year, returning to work in between?
  • Do you or your partner need to work during the first year for financial reasons?
  • Are you are entitled to enhanced maternity pay or is your partner entitled to enhanced parental pay?

Advantages of taking SPL

  • It can be shared between partners, allowing them to stay off work at the same time or at different times
  • You can return to work, and go back on leave (unlike maternity leave, which cannot be restarted once ended)
  • It can be taken in up to three ‘blocks’ (or more if your employer agrees)
  • Employees on SPL can work up to 20 ‘SPLIT’, whereas those on maternity leave can only work up to 10 ‘KIT’ days
  • An employee can use SPL to take paid holiday during their leave period, to boost their pay while they are off work

Are we eligible to take Shared Parental Leave?

To take SPL, there must be two parents sharing responsibility for a child. Partners can include the child’s biological father, the spouse or civil partner of the birth parent, or a partner living in an ‘enduring relationship’ with the birth parent, at the date of birth. Another relative cannot be a partner.

SPL is quite a technical scheme. Both parents must meet different eligibility criteria for one of the parents to take SPL. Sometimes only one parent in a couple is eligible to get SPL and ShPP – if so, this means you can’t share the leave between you.

The parent who is to take SPL must:

  • be sharing responsibility with the other parent from the day of the child’s birth or adoption placement
  • be legally classed as an employee
  • pass the ‘continuity of employment test’ and their partner must pass the ‘employment and earnings test’

The partner who is taking ShPP must:

For more information, see our article on eligibility for leave.

Are workers eligible to take Shared Parental Leave?

Unfortunately, no. Workers, including agency, contract and zero-hours workers, are not entitled to SPL, but may be able to get ShPP. Partners of workers can take SPL and ShPP, if the birth partner passes the ’employment and earnings test’. For more information, see our article on eligibility for leave.

How to book Shared Parental Leave

For either parent to get SPL, the birth parent or primary adopter must do one of the following:

  • end their maternity or adoption leave and return to work
  • give their employer notice to end (‘curtail’) their maternity or adoption leave early

There are strict notification requirements in order to take SPL. To take SPL and ShPP:

  • The birth parent must end their maternity and adoption leave and return to work, or give their employer notice to end (‘curtail’) their maternity or adoption leave early
  • The partner taking SPL/ShPP must give their employer a non-binding notice of entitlement and intention to take SPL and/or ShPP
  • The partner taking leave must give their employer a booking notice (or several booking notices, if taking leave in blocks) at least 8 weeks before the start of leave

For more information, see our article on how to take Shared Parental Leave (SPL) – notice and booking.

Your rights while on Shared Parental Leave

During SPL, your employment continues and you are entitled to all of the terms and conditions of your employment contract, except for your usual salary (‘remuneration’).

You are also entitled to return to your job (if you have taken 26 weeks or less of leave) or a similar job if it is not reasonably practicable for your employer to give you your old job (if you have taken 26 weeks or more of leave).

It is against the law for an employer to treat an employee unfairly because they’ve taken or intend to take SPL.

If your employer treats you unfairly, you should seek advice. For more information, see our page on employment rights.

Occupational Stress Claims

An Occupational Stress Claim is a type of personal injury claim for psychiatric injury arising from stress.

However, workplace stress resulting from coronavirus has not yet been tested in the courts and it is difficult to know what approach will be taken, and any claim will be very fact-specific.

For an Occupational Stress Claim to succeed, an employee will need to prove that:

  • The employer owed a duty of care to the employee not to act carelessly;
  • The employee breached that duty; and
  • That breach caused the employee to suffer an injury.

Duty of Care

An employee is under a duty to take steps to protect an employee from stress at work where it is reasonably foreseeable that the employee is at risk of suffering that kind of harm.

What is foreseeable depends on what the employer knows (or could reasonably be expected to know) about the individual employee and their circumstances. With home working, the question of what the employer knew or ought to have known becomes more complex.

The considerations can include:

  1. The nature and extent of the work done;
  2. Whether the workload was much more than normal for that particular job;
  3. Whether the work is particularly intellectually or emotionally demanding for the employee;
  4. Whether the demands of this employee were unreasonable when compared with the demands of others in the same or comparable jobs;
  5. Whether there are signs that others doing this job are suffering harmful levels of stress;
  6. Signs from the employee of impending harm to health;
  7. Whether the employee has a particular problem or vulnerability;
  8. Whether the employee has previously suffered from illness attributable to stress at work; and
  9. Whether there is reason to think that any recent and uncharacteristic absences from work might be attributable to stress at work, for example, because of complaints or warnings from the employee or others.
    (Hatton v Sutherland [2002]).

The guidance is that the stress must be plain enough for any reasonable employer to realise something should be done about it, but proving foreseeability can often be a difficult hurdle to overcome.

It may even be arguable that in some public sectors (such as the NHS) reasonable foreseeability can be presumed where workers are at greater risk of contracting the virus, but in other sectors, the awareness of the risk of harm may be less clear cut. However, as already mentioned, it is not clear what approach the courts will take to determine issues such as whether psychiatric harm was reasonably foreseeable and whether reasonable steps were taken in light of all the circumstances faced by both the employer and employee. The courts may even be sympathetic to some employers given the difficulties faced, for example, with limited resources or jobs that involve regular direct contact with people suffering from the virus.

Breach of Duty

Once the standard is decided, an employee must also establish a breach of duty, showing that the employer has broken the standard by failing to take reasonable steps to protect the employee from suffering the injury.

What steps were reasonable will depend on the circumstances of each case, and will often involve a balance between the level of risk and severity of likely harm to the employee against the cost and practicability of the proposed step. It will also depend on the sector of employment and considerations of the interests of other employees. It is important not to assume that, just because someone has been injured, there is necessarily a breach.

It is always useful to keep evidence to show what indications of harm were obvious to the employer, what discussions (if any) took place with you and your employer, what options or protective measures were considered but not implemented, and any medical and employment records, in case it becomes necessary to take additional steps at a later stage.

Causation

An employee must also show causation between the employer’s breach of duty and the injury. In other words, that employment-related stress produced a recognised psychological illness or disease.

The illness or disease must be recognised as a medical condition by the World Health Organisation. “Stress” is not a recognised disease, although there are many illnesses that are, for example, psychosis and depression.

Causation may become a particularly difficult issue where an employee has been exposed to COVID-19 at work.

Bringing a Claim

If you are thinking of bringing a claim you should get expert advice to see if you can take legal action and claim compensation. The time limit for bringing a claim is 3 years from the date of the injury suffered or (if later) the date you knew (or could be reasonably expected to know) that the injury might give rise to a legal claim.

The information on the law contained on this site is provided free of charge and does not, and is not intended to, amount to legal advice to any person on a specific case or matter. If you are not a solicitor, you are advised to obtain specific legal advice about your case or matter and not to rely solely on this information. Law and guidance is changing regularly in this area.