Shared Parental Leave (SPL): 20 Questions

1. When does SPL come into force?

SPL can be taken by parents for children born on or after 5 April 2015

2. When can an employee make a claim?

That being said, employees will be able to make a claim after 14 December 2014 if, when making a request for SPL for a child born after 5 April 2015, they are treated unfairly.

3. How long must a new mother stay off for?

A mother must stay off work for 2 weeks after giving birth to a child. This period will remain as compulsory maternity leave.

4. When can SPL begin?

SPL can therefore begin 2 weeks after the birth of the child. (At the moment, additional paternity leave cannot commence until the baby is 20 weeks’ old)

5. What about the first 2 weeks for fathers/partners?

Fathers/partners will still be entitled to 2 weeks’ paternity leave immediately after the birth of the child.

6. Who is eligible?

Obviously the mother is eligible, but the second person can be either the father or the husband, civil partner or partner of the mother at the time of birth. Partner in this context is someone of either sex who lives with the mother and child in an ‘enduring family relationship’.

7. How long must employees have been working to enjoy this entitlement to SPL?

Employees must have worked continuously for the same employer for 26 weeks before the stage at which the birth is expected in 14 weeks.
The other parent requires to have worked 26 weeks out of the previous 66 weeks leading up to the birth and have earned above the maternity allowance threshold.

8. How much leave is permitted to be shared?

The remaining 50 weeks can be shared between the parents.

9. Can both parents be off at the same time?

Yes. Where there is overlapping leave by both parents, the amount of time off will be doubled (i.e. if both parents are off for 1 week, this will count as 2 weeks’ shared parental leave.)

10. How much leave is to be paid?

SPL is to be paid for 39 of the 52 available weeks.

11. How much is the statutory amount an employee will be paid?

For the first 6 weeks, the statutory shared parental leave will be 90% of the average weekly earnings. After that, the person on leave will receive 90% of the average weekly earnings or £136.78 a week, whichever is lower in value.

12. What will happen to the current entitlement to maternity and paternity leave?

Mothers will still have the option to elect to use the current, more traditional form of maternity leave for the 52 weeks instead of using the new SPL. Fathers will also still be able to take their 2 week entitled paternity leave after birth and prior to SPL commencing.

13. How long does a mother get before she can change her mind and revert back to the more traditional maternity leave scheme?

If a request for SPL is made prior to the birth, then it must be granted following the birth. However the mother has 6 weeks after the birth to change her mind and revert back to the more traditional maternity leave scheme.

14. How much notice needs to be given?

8 weeks’ notice needs to be given by an employee who intends to take SPL. This includes a 2 week discussion period which needs to take place between an employer and an employee.

15. How many Keeping In Touch (KIT) days or, in the case of SPL, SPLIT (Shared Parental Leave In Touch) days are permitted?

There are 20 SPLIT days each to be shared whilst on SPL. Parents will be able to use these SPLIT days to return to work on a part time basis.

16. How many notifications can an employee give to an employer?

An employee can give up to 3 notifications of an intention to take SPL, unless it is mutually agreed with the employer that more can be taken.

17. How long should each period off be?

SPL should be taken in week blocks, either as a solitary week or as a number of weeks. The odd day here and there should not be taken as SPL.

18. What information can the employer request?

When a request is made for SPL, the employer can request sight of the child’s birth certificate within 14 days (as soon as possible if the request is made prior to the birth) and the name and address of the partner’s employer.

19. What about adoptions?

Adopters will have the same rights as other parents when adopting a child after 5 April 2015.

20. When should you review your current policies on parental leave?

Now. April 2015 will arrive before you know it and requests may start coming in from employees in the New Year.

Andrew Wallace
Trainee Solicitor – Employment

Holiday pay update: Lock on Lock-down (until February 2015)

Employment lawyers were eagerly awaiting the outcome of the Lock v British Gas Trading Limited case which was due to be heard again by Leicester tribunal office earlier this week.  Unfortunately the hearing has now been postponed until February 2015 and employment lawyers will have to wait until then to hear the next instalment in this saga.

What is the back-story?

Mr Lock was employed as a sales person with British Gas.  He received basic pay and commission payments in terms of a contractual right to receive commission.  His commission represented, on average, over 60% of his monthly pay.  When he was on holiday, Mr Lock received both his basic salary and the commission which had been earned prior to his period of annual leave.  However he did not generate any new commission during his holidays.  Therefore, on his return to work, he would suffer a financial loss as a result of not having earned commission during this annual leave period.

What is the up-to-date situation with this claim?

Mr Lock’s claim was referred all the way up to the European Court of Justice (ECJ).  In summary, the question which was asked of the ECJ was whether Mr Lock should receive holiday pay with reference to the commission payment as well as his basic pay.  The ECJ has ruled that, where a worker is paid commission calculated on the basis of the sales they make, their holiday pay must include the average commission, calculated over an appropriate reference period.  The rationale used by the ECJ is that a worker may be deterred from exercising his right to holidays if there is a financial disadvantage suffered by him after that period of annual leave.

Why do we care what Leicester tribunal have to say about it?

The ECJ have referred the case back to Leicester tribunal office who will require to decide whether they can interpret the UK legislation to comply with this ruling.  It is likely that the tribunal will also require to decide on the appropriate reference period for re-calculating the commission element.  This ruling is likely to have major cost implications for many employers, including the potential for back-dated claims for up to five years in Scotland on the basis that it amounts to a series of unlawful deductions from wages.  Employment lawyers (and employers) are awaiting the outcome with interest and horror in equal proportions.

Although the tribunal was due to hear Mr Lock’s case again this week, due to other tribunal commitments, the case has now been adjourned until February 2015.

Unfortunately we will have to wait until then to hear the next instalment in this rather worrying saga.

Simon Allison 
Partner – Employment Law
@EmpLawyerSimon
www.blackadders.co.uk

Time to Say Goodbye: Dismissals and the Effective Date of Termination

Time limits are important in employment law. An employee requires to have two years’ qualifying service to pursue a claim for ordinary unfair dismissal.  Additionally an employee requires to lodge a claim for ordinary unfair dismissal within three months of the “effective date of termination” (EDT).

When does the clock start ticking for this three month time limit?

The three month time limit commences on the EDT.  The EDT varies depending on the situation.  The date cannot usually be determined in agreement between the parties, but instead is decided objectively in accordance with the statutory definition. Where a contract is terminated by notice, either by the employer or the employee, the EDT is the end of this notice period. Where a contract is terminated without notice by the employer (e.g. summary dismissal), the EDT is the date on which the termination takes effect.

Does it matter if the employee’s dismissal is communicated verbally or in the post?

The employee requires to have actual knowledge of the termination in order for the notice of dismissal to take effect.  The EDT is therefore the date on which the employee becomes aware of his dismissal.  This means that, if the employee is advised at the disciplinary meeting that he is being dismissed without notice, this is the EDT.  By comparison, if the employee is advised in writing of the summary dismissal, the date on which the employee reads the letter is the EDT.

If a summary dismissal is overturned on appeal, does this vary the EDT?

Last month, the EAT considered the case of an employee who was originally dismissed without notice for gross misconduct.  When the employee appealed against his dismissal, the employer substituted the summary dismissal with a decision to dismiss with pay in lieu of notice.  The EAT held that, since the decision to dismiss was upheld, the EDT would remain the date on which the employee was summarily dismissed (not after the notice period would have expired).  The EAT placed importance on the fact that the appeal outcome letter stated that the EDT would be the previous date of termination and that the only difference to the outcome was the entitlement to notice pay..

Can a claim for ordinary unfair dismissal be pursued after expiry of this three month time limit?

If an employee can demonstrate that it was “not reasonably practicable” to lodge a claim within three months of the EDT, a claim can proceed.  However this is a high test for an employee to satisfy.  It is for this reason that employers should be clear about an employee’s EDT.

Tips for employers

If you require certainty as to the EDT, you should advise the employee verbally of the decision to dismiss.

If a decision to dismiss is being communicated in writing, an employer may want to hand-deliver the letter of dismissal to the employee or ensure that any email is marked as “read receipt”.

If a decision to summarily dismiss is overturned on appeal, the decision-maker may want to specify the “new” EDT in the outcome letter.

Andrew Wallace
Trainee Solicitor – Employment Law
@EmpLawyerAndy
www.blackadders.co.uk

TUPE – Relocation, Relocation…

The Transfer of Undertakings Regulations 2006 (“TUPE”) operate to protect the rights of employees in situations where businesses or contracts change hands.  The general rule is that where there is a change of employer, the employees transfer to the new employer on the same terms and conditions of employment as they enjoyed with the old employer.

Where a TUPE transfer involves or would involve a substantial change in working conditions to the material detriment of any employee who would transfer, such an employee can treat the contract as having been terminated and the employee shall be treated as having been dismissed by the employer.  This is regulation 4(9) of TUPE.  This regulation is not to be confused with regulation 4(11) which provides that an employee can resign in response to any repudiatory/fundamental breach of contract by the employer (and then claim constructive dismissal).  The two concepts are similar with the distinction being that a claim under regulation 4(9) does not require any breach of contract.

In Cetinsoy and ors v London United Busways Ltd, the EAT held that a change of base for bus drivers was neither a substantial change in working conditions nor a fundamental breach of contract for constructive dismissal purposes.  Following a TUPE transfer, a bus depot was no longer available and the transferring employees were required to work at another depot some 3.5 miles from where they worked pre-transfer.  The employment contracts contained mobility clauses which allowed the employer to vary the location at which the employees worked (with a number of locations listed in the contract).  The new location at which the drivers had to work post-transfer was not included in the contracts because of course this was a location operated by the new employer and not the old employer (the employment contracts having originally been with the old employer).

The EAT observed that the substantial change and fundamental breach of contract issues were interlinked in that they both related solely to the change in workplace location.  The EAT upheld the employment tribunal’s original finding that there was no substantial change in working conditions and no fundamental breach of contract.  The Judge made a factual assessment of travel within London and found that the drivers would face no more than 30 minutes travel time as a result of the change.  This was not substantial, particularly bearing in mind that the other locations at which the employees could have been required to work under the contract were further away than 3.5 miles.

TUPE cases involving changes in location invariably turn on their facts.  The   Collective Redundancies and Transfer of Undertakings (Protection of Employment) (Amendment) Regulations 2014 came into force on 31 January this year.  Among the changes introduced by the 2014 regulations was the inclusion of changes in workplace location to the types of contract changes permitted by TUPE (economic, technical or organisational changes – “ETO”).  Notwithstanding that a change in location could be an ETO, it is still open for employees to argue that a change in location is a substantial change and/or a fundamental breach of contract.

Jack Boyle
Senior Solicitor – Employment Law
@EmpLawyerJack
www.blackadders.co.uk

Reasons to be Cheerful (for Employers) in the Final Quarter of 2014

 

  • Tribunal Fees 

Employees now have to pay fees to bring claims to the employment tribunal.  For unfair dismissal and discrimination claims there is a lodging fee of £250 (payable on lodging the claim), and a further hearing fee of £950 (payable 4 weeks before the hearing).

The introduction of tribunal fees has seen a reduction of approximately 70% in the number of tribunal cases being brought compared with the numbers prior to the introduction of fees.  Fees are clearly acting as a deterrent and, in the current climate, employers are less likely to face claims if they dismiss.

  • ACAS Early Conciliation

ACAS Early Conciliation is now mandatory. This means that a claimant must initiate contact with ACAS before lodging a tribunal claim. This allows employers an opportunity to resolve disputes before legal costs are incurred. Again this process acts as a further hurdle for employees to overcome before lodging a claim.

  • Cap on compensation

Compensation for unfair dismissal is now capped at the lesser of £76,574 or 12 months’ gross pay. This allows employers greater certainty in assessing potential costs for negotiating settlement agreements or negotiating exit packages.

  • Qualifying service

Employees need to have 2 years’ continuous service before they can raise claims of unfair dismissal. This allows employers greater flexibility and more time to decide whether a new employee is worthy of retaining on a long term basis.

  • Pre-termination negotiations 

Pre-termination discussions allow employers to have “off the record” discussions with employees even where there is no existing dispute.  Such discussions cannot be referred to during any subsequent unfair dismissal proceedings and allow the employer another opportunity to take action against employees.

Come and speak to us …

At the moment, the legislation is weighted in favour of the employer. However these factors are likely to change next year. Employers should seize the opportunity now to take action against difficult or underperforming employees. Those difficult conversations are made slightly less difficult by reason of the current system which provides some comfort for employers.

We are problem solvers.  If you have an employment law query – give us a ring.  A member of the team will happily have an initial discussion with you to assess whether you should take more detailed advice.  Act now, or repent later ….

Simon Allison                          Jack Boyle
Partner                                    Senior Solicitor
(01382) 229222                     (01382) 229222
@EmpLawyerSimon               @EmpLawyerJack