Agency workers may not have the employment status of “employee” but generally tend to be workers – see our page on agency workers for more information. If an agency worker is not an employee they would therefore not eligible for SPL, but their employed partner may be.

Where birth parents are not entitled to maternity leave (for instance, because she is an agency worker but not an employee) she can end her SMP or Maternity Allowance (MA) early to create entitlement to SPL for her partner, provided they both satisfy the qualifying tests (see above). The number of weeks of SMP or MA taken must be deducted from 52 weeks to calculate the number of weeks of SPL that will be available for her partner to take. The birth parent, must curtail her SMP or MA before her pay entitlement ends, which is before 39 weeks. In practice the notice must be given in or before the 38th week, in order to create SPL for her partner. Should she fail to do so, she will not be able to create SPL or ShPP for her partner.

Agency workers who are entitled to SMP or statutory paternity pay may be entitled to ShPP if they take time off to care for their child in the first year. This could apply to other atypical workers such as casual workers, those on zero hours contracts and some freelance contractors who are not self-employed.
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’ (where 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 earned enough to pay it).

There is no requirement for both parents to take SPL. The first two weeks of maternity leave and pay are compulsory for the birth parent for health and safety reasons (or 4 weeks if they work in a factory). Eligible parents can choose how to take the remaining 50 (or 48) weeks of SPL and up to 37 weeks of Shared Parental Pay (ShPP) however they choose. For example, the birth parent could give notice to end her maternity leave and curtail her maternity pay after 6 weeks in order to create up to 46 weeks of SPL (and up to 33 weeks of ShPP), which she can then take in single of discontinuous blocks returning to work for periods in between up until the baby’s first birthday. This flexibility to work in between periods of SPL is not possible with maternity leave.

Both parents will need to meet the relevant eligibility criteria even if only the birth parent intends to take SPL (see above). This means that in addition to the birth parent meeting the eligibility criteria to take SPL and ShPP, the non-birthing parent will also need to meet the initial eligibility requirement and must:

• Satisfy the “employment and earnings test” (broadly, 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; and
• at the date of the child’s birth, have responsibility for the care of the child (Regulation 4(1) and (3), SPL Regulations.)

Providing both parents satisfy the requirements, the birth parent would be able to give notice to end her statutory maternity leave (and curtail her maternity pay) and take SPL in a single or discontinuous blocks (please see information on the notification requirements.

Please note that the non-birthing parent must give their consent to the birth parent taking SPL, by signing the declaration that goes with the birth parent’s opt-in notice (regulation 8(3)). Once they have done so, there is no requirement for them to actually take SPL, and you will be able to use the full SPL entitlement.

An important consideration is that the first six weeks of SMP is paid at the higher rate of 90% of the birth parent’s average earnings, whereas ShPP is paid at the statutory flat rate. The higher rate of SMP cannot be transferred to the partner or taken later. Therefore, it is usually more beneficial for the birth parent to stay on maternity leave for at least the first 6 weeks before curtailing her leave to take SPL.

The partner taking SPL or ShPP must be employed up to the week in which SPL/ShPP starts. If their employment comes to an end (e.g. redundancy, dismissal or resignation) before SPL/ShPP, they will not be eligible. If their employment ends during SPL/ShPP, the partner remains entitled to ShPP up to the end of the period of leave booked (unless s/he starts a new job).

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, see our article on what to do if my employer does not give me statutory pay?

If a birth parent leaves employment after she has qualified for Statutory Maternity Pay (SMP) period, she remains entitled to be paid up to a maximum of 39 weeks SMP. If she has reduced her SMP period in order to create ShPP for her partner, her partner can take the SPL/ShPP as long as s/he is still employed and otherwise eligible.

If the birth parent is an employee and she is getting Maternity Allowance and returns to work early, she may qualify for SPL, but she will not qualify for ShPP.

If she returns to work early and wishes to take some SPL, she can 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 for 39 weeks, even if the birth parent 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 birth parent is off sick or absent from work.

If the birth parent 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, the non-birthing parent, wishes to take four weeks’ SPL/ShPP, for example, the birth parent must curtail her maternity leave and Maternity Allowance by four weeks in order to create SPL and ShPP for the non-birthing parent.

The birth parent 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.

Where birth parents are getting Maternity Allowance and are not entitled to maternity leave (for instance, because she is self-employed or an agency worker) she can end her Maternity Allowance early to create entitlement to SPL for her partner, provided they both satisfy the qualifying tests (see above). A birth parent or primary adopter cannot curtail their SMP or SAP or Maternity Allowance if neither they nor their partner is entitled to SPL or ShPP.

The number of weeks of Maternity Allowance taken must be deducted from 52 weeks to calculate the number of weeks of SPL that will be available for her partner to take. The birth parent, must curtail her Maternity Allowance before her entitlement ends, which is before 39 weeks. In practice the notice must be given on or before the 38th week, in order to create SPL for her partner. Should she fail to do so, she will not be able to create SPL or ShPP for her partner.

The first six weeks of SMP is paid at 90% of earnings, whereas ShPP is paid at the flat rate.

Only the birth parent (or primary adopter) is entitled to the higher rate of SMP (or Statutory Adoption Pay) for the first six weeks. It cannot be passed on to the partner or taken at a later date.

This means that if the birth parent returns to work before six weeks, she will lose the remaining weeks at the higher rate of 90% of her average earnings. If she takes SPL later in the year and claims ShPP, it will be paid at the flat rate.

It is therefore usually more financially beneficial for the birth parent to stay on maternity leave for at least 6 weeks.