Employment Law Workshop
24 September 2014
Paul Callegari, Partner
Emma Thomas, Senior Associate
© Copyright 2014 by K&L Gates LLP. All rights reserved.
Areas to be covered:
1. Shared parental leave
2. Flexible working
3. Holiday pay
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Shared Parental Leave (SPL)
 Children and Families Act 2014 inserts new
provisions into Employment Rights Act 1996
 New regime applies to children whose EWC
begins on or after 5 April 2015 or who are placed
for adoption after that date
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Current Position
 Maternity: up to 52 weeks (39 paid, 13 unpaid)
 SMP: 90% average earnings for first 6 weeks, 33
weeks at flat rate
 Paternity:
 2 weeks Ordinary Paternity Leave (OPL) paid at flat
rate
 Additional paternity leave (APL) available if mother
has returned to work without using full maternity leave
 APL up to 26 weeks (or unclaimed maternity leave
period if less)
 APL paid at flat rate during mother’s unclaimed SMP
period
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Current Position (Cont.)
 Adoption:
 up to 52 weeks statutory adoption leave (SAL)
 paid at flat rate for 39 weeks (NB no enhancement for
first 6 weeks)
 Unpaid parental leave
 1 year’s service
 each parent can take up to 18 weeks unpaid leave at
any time up to child’s 5th birthday (18 for disabled
children)
 No more than 4 weeks’ leave per year; 1 week blocks
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Development of SPL
 Conservative/Lib Dem commitment to introduce
a more flexible system
 Labour introduced APL scheme in April 2011, but
only 0.6% take up
 Concerns about inflexibility – mother has to return to
work first
 Various regulations in process, some finalised,
others not!
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SPL and Current Rights
 Maternity leave unchanged
 Adoption leave unchanged for primary adopter
 Additional paternity leave abolished; OPL will
remain
 SPL available (but not mandatory)
 Unpaid parental leave still available (may be
relevant after first year)
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SPL: Key Features
 mother may curtail maternity leave to allow other
parent to share the balance
 applies to first 52 weeks following birth
 applies to employees and those who are
“economically active”, i.e. self employed who
meet a minimum earnings threshold
 e.g. if father “economically active”, mother could take
part of her maternity leave, go back to work, then take
SPL at later date
 up to 50 weeks of leave and 37 weeks of pay
available (i.e. everything apart from 2 weeks of
compulsory maternity leave)
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Eligibility
 Mother
 Father or partner at date of birth
 partner can be civil partner, or “lives with mother in
enduring family relationship” but not a relative
 same or different sex
 Mother is eligible if:
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26 weeks service by EWC
responsibility for caring for child
entitled to statutory maternity leave (i.e. an employee)
curtail leave by returning to work or serving curtailment
notice
 serves notices referred to above
 P satisfies earnings test
 P is responsible for care of child
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Eligibility (Cont.)
 Father/Partner is eligible if:
 26 weeks service before EWC
 responsibility for care
 given notices above (entitlement/intention and period
of leave)
 M must satisfy earnings test
 M must be responsible for care
 M must be entitled to statutory maternity leave, pay or
allowance
 M must have served curtailment notice or returned to
work
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Notices
 Mother must:
 either return to work (after giving 8 weeks’ notice of
intention to do so early); or
 serve curtailment notice at least 8 weeks before date she
wishes leave entitlement to end
 At the same time mother must serve either a “notice
of entitlement and intention to take SPL” or
declaration that partner has served such notice

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contains start and end dates
8 weeks before start
non-binding
declaration of consent
employer can request evidence e.g. birth certificate
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Notices (Cont.)
 Final notice: “period of leave notice”
 at least 8 weeks before start date
 may be served at same time as other notices but not
required
 if 1 period of SPL – employer must accept
 if separate periods – employer has 2 weeks to
accept/refuse/suggest alternatives
 if refusal, employee can take 1 period or withdraw
 employee has three notices
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T’s and C’s during SPL
 similar to maternity: everything except
remuneration
 reasonable contact and up to 20 days’ paid work
 in addition to KIT days
 redundancy protection
 must be offered suitable alternative employment
 right to return
 If total leave < 26 weeks: same job
 If > 26 weeks, same or suitable alternative
 protection from detriment or dismissal on
grounds of taking SPL
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How much SPL?
 52 weeks less any leave taken by M
 parents can agree how much each will take
 multiples of complete weeks in one continuous
period or discontinuous period
 one SPL entitlement per pregnancy (i.e. twins
doesn’t mean two periods!)
 OPL is not discounted, so absolute maximum is
54 weeks, of which:
 2 reserved to mother (compulsory)
 2 reserved to father (OPL)
 If one parent is not eligible, other parent (if
eligible) can take full 52 weeks
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Concurrent Periods of Leave
 SPL/SPL
 SPL/unpaid parental leave
 SPL/OPL (if OPL taken later than 2 weeks after
birth – usually not)
 SPL/maternity leave (during 8 week notice of
curtailment period)
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Varying SPL Periods
 Employee can give notice to vary start or end
date
 at least 8 weeks before date to be varied and
proposed new date
 can convert continuous to discontinuous and vice
versa
 three notices maximum (i.e. only change twice) –
employer can agree to more
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Action Points
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Update policies and standard forms
Enhance pay?
Train managers on how to deal with requests
Read the Government Guidance:
www.gov.uk/shared-parental-leave-andpay/overview
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Flexible Working
 Who can make a request for flexible working?
 all employees who have 26 weeks’ continuous service
 only 1 request in any 12 month period
 agency workers and employee shareholders are
excluded
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Flexible Working Requests
 must be in writing
 be dated
 state that it is an application under the statutory
procedure
 specify the change the employee wants and
when they want it to take effect
 explain what effect the change would have on
the business and how the company can deal
with this
 state whether the employee has made a
previous application and, if so, when
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Employer’s Obligations
 deal with the request within a 3 month period
 deal with it in a reasonable manner
 only refuse a request on the basis of one or more of
the 8 prescribed reasons
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Prescribed Reasons
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the burden of additional costs
detrimental effect on ability to meet customer demand
inability to reorganise work among existing staff
inability to recruit additional staff
detrimental impact on quality
detrimental impact on performance
insufficiency of work during the periods the employee
proposes to work
 planned structural changes
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ACAS Guidance
 The Statutory Code of Practice; Handling in a
reasonable manner requests to work flexibly
 The right to request flexible working: an ACAS
Guide
 Tribunals must take both into account
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ACAS Codes
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Approaching requests with an open mind
Allow employees to be accompanied
Dealing with multiple applications at once
Appeals
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Possible Claims
 Breach of statutory scheme
 Discrimination
 Constructive Dismissal
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Practical Evidence
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Update policies
Consider requests on a case by case basis
Consider alternatives
Trial periods
Be consistent and maintain records
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Holiday Pay
 Employees are entitled to 4 weeks’ paid holiday
under the Working Time Directive
 Also get an additional 1.6 weeks’ paid holiday
under the Working Time Regulations 1998
 A “week’s pay” and working patterns
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Normal Working Week’s Pay
 Williams and others -v- British Airways plc:
 ECJ held that payments which are linked to tasks that
an employee might be required to carry out under his
or her contract must be taken into consideration when
calculating holiday pay
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Commission
 Lock -v- British Gas Trading Limited:
 ECJ held that holiday pay should include any
payments that are “intrinsically linked” to the
performance of the employee’s tasks e.g. commission
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Practical Considerations
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To pay or not to pay
Reference period
Overtime
How far back can claims go?
Do the rules apply to employees’ 4 week holiday
entitlement or their entitlement to 5-6 weeks?
 Income tax
klgates.com
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Employment Law Workshop
24 September 2014
Paul Callegari, Partner
Emma Thomas, Senior Associate
© Copyright 2014 by K&L Gates LLP. All rights reserved.