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Enhanced Shared Parental Leave Pay, The Dilemma


If you, as an employer of Domestic/Household staff pay enhanced Maternity pay, but not enhanced Shared Parental Pay, (SPL) how do you stand legally. (see explanatory footnote for further explanation)


Well at the moment, it’s a tricky question, as failing to do so has firstly been ruled that it did NOT constitute Indirect Discrimination, but then the Employment Appeal Tribunal said the first tribunal was in error and has referred it to a further tribunal to consider.

 SPL was introduced in 2015 and the government has issued technical advice that there is no legal obligation to match enhanced rates of pay for parents taking it.

Two recent cases have brought the issue into the spotlight and employers were hoping there would be a clear way forward which did not leave them open to a discrimination claim.

 However, this has not materialised and we now await the result of the new Employment Tribunal. If that tribunal rules that non-payment of enhanced pay to parents taking SPL constitutes Indirect Discrimination, employers will probably absorb the additional costs of paying enhanced pay and avoid the possibility of a claim.

Further explanation

Maternity pay and Shared Parental Leave

It embraces all babies born on or after 1st April 2015, and the rate at which this has to be paid is currently £138.18 a week or 90% of your employee’s average weekly earnings, whichever is lower.

Employees may also be entitled to Shared Parental Leave (SPL) and Statutory Shared Parental Pay (ShPP) if: they adopt a child on or after 5 April 2015.

Until 4 April 2015 fathers may get Additional Paternity Leave and Pay instead of Shared Parental Leave.

To qualify for Shared Parental Leave (SPL), the employee concerned must share care of the child with either: their husband, wife, civil partner or joint adopter, the child’s other parent, their partner if they live with the employee and the child.

Your employee or their partner must be eligible for maternity pay or leave or Maternity Allowance or adoption pay or leave.

They must also have been employed continuously for at least 26 weeks by the end of the 15th week before the due date (or by the date they are matched with their adopted child) and in your employ while they take SPL.

There are also conditions attached to the right of their partner to claim Shared Parental Pay, but that is unlikely to affect you, unless both parties are in your employment.

Statutory Shared Parental Pay

The mother will also qualify for ShPP if one of the following applies: that they  qualify for Statutory Maternity Pay or Pay, that they qualify for Statutory Paternity Pay and have a partner who qualifies for Statutory Maternity Pay or Maternity Allowance or Statutory Adoption Pay.

 

The Graham Agency, keeping you informed.

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