The Role of your Employer/ HR in Shared Parental Leave Applications

Over the years we have heard from several teachers who were aggrieved that their employer/ HR had not told them about Shared Parental Leave (SPL) and how it could have benefitted them. They felt wronged and wanted to know if HR's failure to mention it to them was grounds for a backdated claim. Unfortunately the answer is no - a lot of the responsibility lies with the employee (and SPL can never be backdated!)

This weeks article looks at the role of the employer; what responsibilities HR have to employees and what responsibility lies with the employee wishing to take leave.

Legal Responsibilities

Ultimately your school/ employer does not have to have an SPL policy and regardless of whether they have one or not, they have no duty to proactively make you aware of it. Whilst it may sound unfair, the duty to find out about SPL lies with the employee.

If your school doesn't have a shared parental leave policy you are not prevented from applying, all it means is that you can rely on the statute exactly as it is set out, with no added occupational benefits on top. You can use the forms found on gov.uk and ACAS to apply.

Once you do apply your employer has a duty to process that correctly. They should also answer questions about your application in a timely manner, though note they have no obligation to help you to plan the leave or to let you know if you are taking the leave in a disadvantageous way. ACAS, in their good practice guide do advise that employers should (this means it is good practice, but not the law) ensure employees know how to apply for SPL and must (the law!) meet the statutory minimum requirements of the legislation - which means they cannot deny a request that is made within your statutory entitlements.

Responding to Leave Requests

Employers must respond to requests for discontinuous leave within 15 days. Most teachers will apply for continuous leave - Up to three applications, but each on a separate notice. These are automatically approved. It is good practice for employers to acknowledge them, however, if they do not respond you are still entitled to take the leave - the approval is automatic provided the correct notice has been given.

It is worth noting that if you submit a discontinuous leave request (asking for more than one block of leave on one form) , and your employer doesn't respond, on day 14 the request will convert to a single block covering the whole period of blocks you have requested. This is important - we advise against applying in this way - even if the forms looks like you should - if you haven't heard from school by day 14 you must send an email stating that you are officially withdrawing the request by the end of day 15 - if you don't want the request to become one single block (losing out on all those school holidays!). The distinction between continuous and discontinuous leave can be confusing, please read and watch our guide on how to apply to see how to do your paperwork in a way that is automatically approved - or let us do it for you via our support services.

Checking Entitlements

Employers must check that you meet the earnings and work threshold to take SPL/ SHPP. However, there is no obligation on them to check that your partners declaration is valid. Most employers will take this at their word, and are entitled to do so.

They can ask you for further information though; they may ask for a copy of the birth certificate within 14 days of receiving the notice, they may also request contact details for the employee's partner's employer (if employed). If this request is made you must provide the details within 14 days of receiving the notice. Your employer must consider that your partner may not have an employer is self employed, or if employment has ended - but can still have met the criteria.

Responding to requests to vary or cancel leave

If you have notices available (e.g. you haven't used all 3 yet to book leave) you can use a notice to make a change to an existing notice (a variation) or to cancel a block completely. If you have given 8 weeks notice then these are automatically approved regardless of whether HR respond.

If you have used all 3 notices already then any request to change or cancel leave is at your employers discretion. They can refuse these requests and you will have to take the leave as originally booked.

Communication during Shared Parental Leave

Your employer must maintain reasonable contact - which means they must keep you informed of things like staffing changes and job opportunities.

When on SPL you can agree up to 20 Shared Parental Leave In Touch days, (SPLIT). There is no requirement that your employer allows these, nor is there a requirement that you do them. They must be mutually agreed.

Final Thoughts

It is absolutley worth noting that there are many HR/ School business managers/ Headteachers out there who do a brilliant job of raising awareness and supporting staff with their SPL plans. It is also definitely worth saying that these don't tend to be the schools that we are later on helping women resign from because they don't wish to return. Anecdotally, we notice a strong correlation between women who are happy in their jobs, enjoy their mat leave and have a positive return to work, with those schools who are supportive and kind to women when organising their maternity and shared parental leave. The converse is also true, it is not uncommon for us to be helping a woman resign as soon as possible and keep as much pay as possible, where 12 months earlier her employer made her SPL application difficult, or made their annoyance with it felt!

If you are an employer the two best places to find our more about SPL and best practice are the ACAS best practice guide, and the Government Technical Guide for Employers.

We do offer training, online or in person, for school/ MAT/ LA HR teams - more details here or drop us an email - kinza@teachersspl.co.uk