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Shared Parental Leave: Eligibility

Last updated: 19 Apr 2021

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.

This article provides an guidance on eligibility for Shared Parental Leave (SPL) and Pay (ShPP). A quick and easy way to check if you are entitled to SPL and ShPP is to use the government’s calculator.

For more information, see our other articles on sharing or splitting up leave and pay for parents taking Shared Parental 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.

Are you entitled to Shared Parental Leave?

To take Shared Parental Leave (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’

Continuity of employment test

To be eligible for SPL, the person taking the leave must:

  • have been employed continuously for a least 26 weeks by the end of the ‘qualifying week’ (the 15th week before the week in which the baby is due to be born); and
  • be employed by the same employer while they take SPL.

Employment and earnings test

The partner of the person taking the leave must have, during the 66 weeks before the baby is due:

  • been working for at least 26 weeks (they don’t need to be consecutive weeks); and
  • earned at least £30 a week on average in 13 of the 66 weeks.

If both partners want to take SPL, they both must satisfy each test. This means that both partners are employed and both partners satisfy the ‘continuity of employment’ and the ’employment and earnings’ tests.

It is possible for only one partner to be eligible to take SPL, provided satisfy each partner satisfies their relevant test. So, for instance, if the non-birth partner is employed and the birth partner is self-employed, the employed partner can take SPL (as long as the employment and earnings test is satisfied). However, if the birth partner is employed, and the non-birth partner is self-employed, the non-birth partner would not be eligible for SPL but the birth partner would be provided the non-birth partner satisfies the employment and earnings test.

How to work out the qualifying week (the 15th week before the baby is due)
Find the Sunday before the baby is due (or the due date if it is a Sunday) and count back 15 Sundays. This the start of the 15th week before the expected week of childbirth, or your ‘qualifying week’. Use your expected due date on the MAT B1 maternity certificate for the expected week of childbirth.

Are you entitled to Shared Parental Pay?

The partner who is taking ShPP must:

This is the same as the qualifying conditions for Statutory Maternity Pay (SMP) and Statutory Paternity Pay (SPP). This means that a parent who qualifies for SMP or SPP, will also qualify for ShPP as long as s/he is still employed by the same employer by the time they want to take ShPP.

It is possible to qualify for SPL, but not ShPP. Similarly, it is possible to qualify for ShPP, but not SPL. So it is important to check your eligibility for each carefully.

For instance, if the birth partner is an agency worker, and therefore not an employee, she will not be eligible for SPL but may be eligible for ShPP (if she is eligible for SMP). Similarly, if the birth partner is employed, but not entitled to SMP and claiming MA instead, she would be entitled to take SPL but not ShPP.

Quick eligibility checker

Birth partner/employee – on maternity leave and SMP

Partner/employee – on paternity leave and SPP 
Both partners can take SPL and ShPP   
Birth partner/self-employed – on Maternity Allowance

Partner/employee – on paternity leave and SPP 
Birth partner is not entitled to SPL or ShPP, but is entitled to Maternity Allowance for any week of absence from work during the 39 week pay period

Partner can take SPL and ShPP 
Birth partner/employee – on maternity leave and Maternity Allowance

Partner/self-employed – not entitled to paternity leave or pay 
Birth partner can take SPL and claim Maternity Allowance for any week of absence from work during the 39 week pay period

Partner cannot take SPL or ShPP 
Birth partner/agency worker – on SMP

Partner/employee – on paternity leave and SPP 
Birth partner is not entitled to SPL but can take ShPP for weeks of absence from work

Partner can take SPL and ShPP 
Mother/agency worker – on Maternity Allowance

Partner/agency worker – on SPP
Birth partner is not entitled to SPL or ShPP but can get Maternity Allowance for any week of absence from work during the 39 week pay period

Partner is not entitled to SPL but can get ShPP for weeks of absence from work 

Frequently asked questions

Can agency workers be eligible for SPL/ShPP?

Agency workers are not usually employees and are therefore not eligible for SPL, but their employed partner may be. If an agency worker satisfies the employment and earnings test, their employee partner can take SPL if they pass the continuity of employment test.

Agency workers who are entitled to SMP or 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 casuals, those on a 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’ (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 you earned enough to pay it).

Can partners take SPL or ShPP if they leave their jobs?

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

If a birth partner 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.

I’m on Maternity Allowance and want to take SPL

If the birth partner is an employee and she is getting Maternity Allowance (for example, because her earnings are too low for SMP), she will qualify for SPL, but she will not qualify for ShPP. If she returns to work early and wishes to take some SPL, the birth partner 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 to run in the background for 39 weeks, even if a mother 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 mother is off sick or absent from work.

If the mother 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 wishes to take four weeks’ SPL/ShPP, for example, the mother must curtail her maternity leave and Maternity Allowance by four weeks in order to create SPL and ShPP for her partner.

The mother 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.

What happens to the higher rate of SMP if a partner takes SPL and ShPP?

The first six weeks of Statutory Maternity Pay (SMP) is paid at 90% of earnings, whereas ShPP is paid at the flat rate from day one.

Only the birth partner (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 partner 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 mother to stay on SMP for at least he first 6 weeks of leave.


This advice applies in England, Wales, Scotland and Northern Ireland. 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.

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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.