THERE are a number of significant employment law changes that will impact on British businesses which come into force this year.
One of the most high profile changes will be the issue of shared parental leave.
From April 5, new parents and adopters now have an opportunity to share up to 52 weeks’ leave between them and up to 37 weeks’ pay, in a way which best suits their families, via a new right called shared parental leave (ShPL) and shared parental pay (ShPP).
Eligible parents will be able to take time off together to care for their child, transfer leave to their partner and return to work in between leave periods during the child’s first year.
Parents do not have to take ShPL - it is entirely optional and those who do not ‘opt in’ will still benefit from existing family friendly rights such as maternity, adoption and paternity leave.
Employees do not have to make a decision about whether they wish to take ShPL before their baby is born or their adoption takes effect.
Instead, they can start maternity or adoption leave and then decide to convert any remaining leave to ShPL at a later date.
ShPL is only available to eligible parents whose babies are due on or after April 5 of this year, or to adoptive parents who have a child placed with them on or after this date.
Only employees can apply for ShPL and it is not available to agency workers or to those who are self-employed.
To qualify, employees must have been continuously employed for at least 26 weeks before the fifteenth week before the baby is due and must remain so.
The co-parent must also be ‘economically active’, which means that they must have worked and earned a minimum amount over a qualifying period.
Employees may also be eligible to receive ShPP for up to 37 weeks provided there is some remaining statutory maternity or adoption pay that would otherwise be available which can, subject to certain rules, be transferred to the other parent or utilised by the primary carer.
ShPP is paid at a flat rate (currently £138.18 per week).
Notification requirements
An eligible mother who wants to take ShPL, or enable her eligible partner to take it, must end her maternity or adoption leave.
She can do this by returning to work before the end of her maternity leave period, or by giving notice that she intends to end it at a future date.
Employees must give their employers at least eight weeks’ written notice of the date they wish to take leave and this must be signed by the eligible co-parent.
Employees who ask to take a single block of leave are entitled to take it.
However, if an employee asks in a single notice to take leave in different blocks, her employer does not have to agree to it.
Instead, it has two weeks to discuss the pattern of leave and suggest alternatives.
If the request is refused, the employee has the right to take the amount of leave as a continuous period.
It appears, however, that an employee will still be able to take leave in up to three discontinuous blocks of leave by serving three separate notices in respect of each discrete block of leave, provided they have not already used up all of their three leave notices.
Businesses may start to receive early applications from employees wishing to take ShPL and will therefore need to understand the basic system.
We recommend companies develop new policies to deal with this new right (which will assist the staff and the managers implementing the policies) and to make consequential amendments to their existing maternity, paternity and adoption leave policies.
Holiday pay
The issue of how much workers are entitled to be paid when taking holiday will continue to be an issue for many businesses.
Last year, the Employment Appeal Tribunal found that workers who regularly worked contractual overtime and received taxable allowances linked to their work were entitled to have these payments included in their holiday pay and that it is unlawful for employers to only pay holiday at a basic rate.
In addition, the European Court of Justice found that a worker whose salary included regular large commission payments should be compensated when taking holiday because he was not able to earn commission.
These decisions are significant and suggest that many employers and agencies have been underpaying holiday for the last 16 years.
Although they are subject to certain limitations, businesses should certainly review the holiday pay calculations of their employees and agency staff they are responsible to pay to ensure that they comply with these rulings and include all necessary payments.
About Mark Lennon...
Irish Post legal columnist Mark Lennon is a Birmingham-based solicitor with Irwin Mitchell - a national law firm with offices across Britain, who run regular, free, drop-in legal advice clinics in association with Birmingham Irish Association and Leeds Irish Health Homes.
Originally from Co. Tyrone Mark works for Irwin Mitchell where he acts for people who have developed illnesses as a result of their work conditions. He also works closely with Irish in Britain to offer legal and educational services.
A Queen’s University graduate, Mark later moved to Newcastle-upon-Tyne where he trained and qualified with a leading north east firm.
He joined Irwin Mitchell in 2011 and as a trustee of the Birmingham Irish Association has run fortnightly legal advice clinics at the charity’s centre in Digbeth since 2013. These community legal clinics now also run in Leeds.
Birmingham Irish Association legal clinics are fortnightly on Thursdays: April 9/23, May 7/21, June 4/18.
Leeds Irish Health and Homes’ clinics run a monthly currently on the last Wednesday of the month: April 29, May 27, June 24.
To contact Mark Lennon call 01212035365 or email [email protected]
Disclaimer: This column is for general information only and does not constitute formal legal advice. Specific legal advice should be taken before acting on any topics covered.
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