‘Shared parenting’ - great for families,
complex for employers
October 2010
Shared parenting has become one of the new mantras of the
Coalition Government, as it’s seen as the solution for everything
from equal pay to improved stability for children, but what does it
mean to us as employers? Perhaps the first stumbling block to get
over is the fact that it is now definitely going to happen. After
months of uncertainty the government has confirmed that it will
introduce additional paternity leave and pay as planned for babies
due, or children matched for adoption, from 3rd April 2011 onwards.
In the remainder of this article we focus on rights for natural
rather than adoptive parents although there are many
similarities.
We should begin by clarifying that additional leave and pay are
separate entitlements. It is therefore possible for parents where
there is no underlying entitlement to SMP or Maternity Allowance to
share the 52 weeks of maternity leave which all women are entitled
to. This is of course more likely to be financially attractive
where the father’s employer has occupational paternity pay. Let’s
also lay to rest the myth that only the natural parents have the
right to share leave. A new partner, who is not the child’s father,
can enjoy the new rights as long as he is prepared to sign a
‘declaration of parental responsibility’, and the mother can
certify that no one else is claiming her unused leave and pay.
Since 2007 women have been able to qualify for 39 weeks of SMP,
but there is still a mismatch with the automatic right to maternity
leave of 52 weeks. This will add complexity when leave is shared.
So in designing the new rights policy makers have tried to strike a
balance between protecting the health of mother and baby,
encouraging take up by fathers and minimising the burden on
business.
The first objective is achieved by ensuring that leave and pay
cannot be transferred until it is at least 20 weeks since the birth
of the baby. That doesn’t mean that mothers must take at least 20
weeks of leave; there is no change to the minimum compulsory
maternity leave of two weeks (or four if the woman works in a
factory). There can also be a gap between the mother returning to
work and the father beginning his leave. For most employers this
means that the first employees to take advantage of the rights will
do so in September 2011. However where a baby is born prematurely
that was due on 3rd April or later, or the mother dies during the
maternity pay period it is possible for entitlement to occur this
tax year. In the latter case of a mother dying during the maternity
pay period the father can take all the unused SMP i.e. up to 39
weeks. Where this occurs in the 2010/11 tax year it will have to be
reported in the SPP box on the P35 as there is no ASPP field until
the end of 2011/12.
Encouraging take up by fathers has been delivered by ensuring
that not only must they be able to return to their old job after
leave but that they will also benefit from an entitlement to up to
ten Keeping-in-touch days, regardless of the length of leave that
they decide to take; and the maintenance of all non-cash benefits
throughout the whole leave period, and employer pension
contributions to the end of the paid leave portion.
Any extension of employment rights is an extra administrative
burden for employers but the former government when designing the
process decided that self-certification of entitlement by both
parents was the light touch approach they were looking for. Both
employers are entitled to eight weeks’ notice from their respective
employees, that in the mother’s case they wish to return to work
early, and in the father’s that he wants to commence leave. Any
changes to the father’s notified start date must be given to the
employer with 6 weeks’ notice and if this isn’t given the employer
can insist upon the leave being taken as originally notified, even
if it must be unpaid leave rather than additional paternity leave
if the mother has not returned to work.
On receipt of notice the father’s employer has 28 days to
confirm entitlement, or otherwise, back to the employee. If he had
already qualified for the one or two weeks that can be taken around
the birth (now to be called ordinary leave) then if he is still
employed at the date he wishes to start additional leave he
automatically qualifies. If he chose not to take ordinary leave, or
perhaps was not even in this current relationship at that time, the
employer will have to calculate whether his average earnings are
above the Lower Earnings Limit at his partner’s qualifying week and
at that point whether he has at least 26 week’s service. To be able
to confirm to the employee the number of weeks of paternity pay and
leave he is eligible for, his employer must be given the mother’s
start and end dates for SMP and leave, and the baby’s date of
birth. With this information he can calculate:
- The earliest start date for leave – at least 20 weeks after the
date of birth
- The latest end date for leave – the day before the baby’s first
birthday or the last day of the 52nd week of the maternity leave,
whichever falls earliest
- The number of weeks’ leave that are being requested – a minimum
of two and a maximum of 26
- How many of these will be paid – based on the number of weeks
of the mother’s 39 week SMP entitlement that is unused – again a
minimum of two and a maximum of 26
Where there is entitlement to pay this will all be paid at the
standard rate of SPP or 90% of average earnings if these are less
than the standard rate. During the leave period the father can,
with the employer’s agreement, take up to ten Keeping-in-touch
(KIT) days without any loss of additional statutory paternity pay
(ASPP). It is up to the employer to decide on the level of
remuneration for these days subject to the caveat that at least the
value of a week’s ASPP must be paid (currently £124.88) during an
ASPP week, and that pay for a KIT day within that week does not
fall below the National Minimum Wage.
Space precludes me delving further into the detail of this
complex development in employment rights but it is to be hoped that
HMRC’s E19 guidance booklet will soon be available to employers to
help them prepare.
Kate Upcraft FIPPDip AMBCS
ISIS Support Services Ltd
Registered number 6738498
Kate is a freelance writer and lecturer on payroll
issues
kateupcraft@btconnect.com
0116 241 5732/07748 797478
www.kateupcraft.com