PART 2

SHARED RIGHTS TO LEAVE AND PAY

Shared parental leave

Shared parental leave
2
1
The Employment Rights Order is amended as follows.
2
In Part 9, after Article 107D insert—
CHAPTER 1B

SHARED PARENTAL LEAVE

Entitlement to shared parental leave: birth
107E
1
The Department may make regulations entitling an employee who satisfies specified conditions—
a
as to duration of employment,
b
as to being, or expecting to be, the mother of a child,
c
as to caring or intending to care, with another person (“P”), for the child,
d
as to entitlement to maternity leave,
e
as to the exercise of that entitlement and the extent of any such exercise,
f
as to giving notice of an intention to exercise an entitlement to leave under this paragraph, and
g
as to the consent of P to the amount of leave under this paragraph that the employee intends to take,
to be absent from work on leave under this paragraph for the purpose of caring for the child.
2
Regulations under paragraph (1) may provide that the employee's entitlement is subject to the satisfaction by P of specified conditions—
a
as to employment or self-employment,
b
as to having earnings of a specified amount for a specified period,
c
as to caring or intending to care, with the employee, for the child, and
d
as to relationship with the child or the employee.
3
Provision under paragraph (1)(f) may require the employee to give notice to the employer about—
a
the amount of leave to which the employee would be entitled if the entitlement were fully exercised (disregarding for these purposes any intention of P to exercise an entitlement to leave under paragraph (4) or to statutory shared parental pay),
b
how much of the entitlement to leave the employee intends to exercise,
c
the extent to which P intends to exercise an entitlement to leave under paragraph (4) or to statutory shared parental pay.
4
The Department may make regulations entitling an employee who satisfies specified conditions—
a
as to duration of employment,
b
as to relationship with a child or expected child or with the child's mother,
c
as to caring or intending to care, with the child's mother, for the child,
d
as to giving notice of an intention to exercise an entitlement to leave under this paragraph, and
e
as to the consent of the child's mother to the amount of leave under this paragraph that the employee intends to take,
to be absent from work on leave under this paragraph for the purpose of caring for the child.
5
Regulations under paragraph (4) may provide that the employee's entitlement is subject to the satisfaction by the child's mother of specified conditions—
a
as to employment or self-employment,
b
as to having earnings of a specified amount for a specified period,
c
as to caring or intending to care, with the employee, for the child,
d
as to entitlement (or lack of entitlement) to maternity leave, statutory maternity pay or maternity allowance, and
e
as to the exercise of any such entitlement and the extent of any such exercise.
6
Provision under paragraph (4)(d) may require the employee to give notice to the employer about—
a
the amount of leave to which the employee would be entitled if the entitlement were fully exercised (disregarding for these purposes any intention of the child's mother to exercise an entitlement to leave under paragraph (1) or to statutory shared parental pay),
b
how much of the entitlement to leave the employee intends to exercise,
c
the extent to which the child's mother intends to exercise an entitlement to leave under paragraph (1) or to statutory shared parental pay.
7
In this Article and Articles 107F to 107K and 107M, “specified” means specified for the time being in regulations made under the Article concerned.

Entitlement to leave under Article 107E: further provision
107F
1
Regulations under Article 107E are to include provision for determining—
a
the amount of leave under Article 107E(1) or (4) to which an employee is entitled in respect of a child,
b
when leave under Article 107E(1) or (4) may be taken.
2
Provision under paragraph (1)(a) is to secure that the amount of leave to which an employee is entitled in respect of a child does not exceed—
a
in a case where the child's mother became entitled to maternity leave, the relevant amount of time reduced by—
i
where her maternity leave ends without her ordinary or additional maternity leave period having been curtailed by virtue of Article 103(3)(ba) or 105(3)(a), the amount of maternity leave taken by the child's mother, or
ii
except where sub-paragraph (a)(i) applies, the amount of time between the beginning of her maternity leave and the time when her ordinary or additional maternity leave period, as curtailed by virtue of Article 103(3)(ba) or 105(3)(a), comes to an end,
b
in a case where the child's mother became entitled to statutory maternity pay or maternity allowance but not maternity leave, the relevant amount of time reduced by an amount determined in accordance with paragraph (a) or, as the case may be, paragraph (b) of section 167ZV(2) of the Contributions and Benefits Act 1992.
3
In paragraph (2) “the relevant amount of time” means an amount of time specified in or determined in accordance with regulations under Article 107E.
4
Provision under paragraph (1)(a) is to secure that the amount of leave that an employee is entitled to take in respect of a child takes into account—
a
in a case where another person is entitled to leave under Article 107E in respect of the child, the amount of such leave taken by the other person,
b
in a case where another person is entitled to statutory shared parental pay in respect of the child but not leave under Article 107E, the number of weeks in respect of which such pay is payable to the other person.
5
In reckoning for the purposes of paragraph (2) the amount of maternity leave taken, a part of a week is to be treated as a full week.
6
In reckoning for the purposes of paragraph (4) the amount of leave under Article 107E taken during a period of such leave, a part of a week is to be treated as a full week.
7
Provision under paragraph (1)(b) is to secure that leave under Article 107E must be taken before the end of such period as may be specified.
8
Regulations under Article 107E are to provide for the taking of leave under that Article in a single period or in non-consecutive periods.
9
Regulations under that Article may—
a
provide for an employer, subject to such restrictions as may be specified, to require an employee who proposes to take non-consecutive periods of leave under that Article to take that amount of leave as a single period of leave,
b
provide for a single period of leave that is so imposed on an employee to start with a day proposed by the employee or, if no day is proposed, with the first day of the first period of leave proposed by the employee.
10
Regulations under Article 107E may provide for the variation, subject to such restrictions as may be specified, of—
a
the period or periods during which an amount of leave under Article 107E may be taken,
b
the amount of leave under Article 107E that the employee previously specified in accordance with provision by virtue of—
i
Article 107E(3)(b) or (6)(b), or
ii
paragraph (13)(b).
11
Provision under paragraph (10)(a) may provide for variation to besubject to the consent of an employer in specified circumstances.
12
Provision under paragraph (10)(b) may require an employee to satisfy specified conditions—
a
as to giving notice of an intention to vary the amount of leave under Article 107E to be taken by the employee,
b
if the employee proposes to vary the amount of leave under Article 107E(1) to be taken by the employee, as to the consent of P to that variation,
c
if the employee proposes to vary the amount of leave under Article 107E(4) to be taken by the employee, as to the consent of the child's mother to that variation.
13
Provision under paragraph (12)(a) may require an employee to give notice to the employer about—
a
the extent to which the employee has exercised an entitlement to leave under Article 107E(1) or (4) in respect of the child,
b
how much of the entitlement to leave the employee intends to exercise,
c
the extent to which a person other than the employee has exercised an entitlement to leave under Article 107E or to statutory shared parental pay in respect of the child,
d
the extent to which a person other than the employee intends to exercise such an entitlement.
14
Regulations under Article 107E may—
a
specify things which are, or are not, to be taken as done for the purpose of caring for a child,
b
make provision excluding the right to be absent on leave under Article 107E in respect of a child where more than one child is born as a result of the same pregnancy,
c
specify a minimum amount of leave under Article 107E which may be taken,
d
make provision about how leave under Article 107E may be taken,
e
specify circumstances in which an employee may work for the employer during a period of leave under Article 107E without bringing the particular period of leave, or the employee's entitlement to leave under Article 107E, to an end,
f
specify circumstances in which an employee may be absent on leave under Article 107E otherwise than for the purpose of caring for a child without bringing the person's entitlement to leave under Article 107E to an end.
15
In this Article, “week” means any period of seven days.
16
The Department may by regulations provide that the following do not have effect, or have effect with specified modifications, in a case where the mother of a child dies before another person has become entitled to leave under Article 107E in respect of the child—
a
Article 107E(4)(b), (c) and (e),
b
Article 107E(5),
c
Article 107E(6)(c),
d
paragraph (12)(c),
e
paragraph (13)(c) and (d).

Entitlement to shared parental leave: adoption
107G
1
The Department may make regulations entitling an employee who satisfies specified conditions—
a
as to duration of employment,
b
as to being a person with whom a child is, or is expected to be, placed for adoption under the law of any part of the United Kingdom,
c
as to caring or intending to care, with another person (“P”), for the child,
d
as to entitlement to adoption leave,
e
as to the exercise of that entitlement and the extent of any such exercise,
f
as to giving notice of an intention to exercise an entitlement to leave under this paragraph, and
g
as to the consent of P to the amount of leave under this paragraph that the employee intends to take,
to be absent from work on leave under this paragraph for the purpose of caring for the child.
2
Regulations under paragraph (1) may provide that the employee's entitlement is subject to the satisfaction by P of specified conditions—
a
as to employment or self-employment,
b
as to having earnings of a specified amount for a specified period,
c
as to caring or intending to care, with the employee, for the child, and
d
as to relationship with the child or the employee.
3
Provision under paragraph (1)(f) may require the employee to give notice to the employer about—
a
the amount of leave to which the employee would be entitled if the entitlement were fully exercised (disregarding for these purposes any intention of P to exercise an entitlement to leave under paragraph (4) or to statutory shared parental pay),
b
how much of the entitlement to leave the employee intends to exercise,
c
the extent to which P intends to exercise an entitlement to leave under paragraph (4) or to statutory shared parental pay.
4
The Department may make regulations entitling an employee who satisfies specified conditions—
a
as to duration of employment,
b
as to relationship with a child placed, or expected to be placed, for adoption under the law of any part of the United Kingdom or with a person (“A”) with whom the child is, or is expected to be, so placed,
c
as to caring or intending to care, with A, for the child,
d
as to giving notice of an intention to exercise an entitlement to leave under this paragraph, and
e
as to the consent of A to the amount of leave under this paragraph that the employee intends to take,
to be absent from work on leave under this paragraph for the purpose of caring for the child.
5
Regulations under paragraph (4) may provide that the employee's entitlement is subject to the satisfaction by A of specified conditions—
a
as to employment or self-employment,
b
as to having earnings of a specified amount for a specified period,
c
as to caring or intending to care, with the employee, for the child,
d
as to entitlement (or lack of entitlement) to adoption leave or statutory adoption pay, and
e
as to the exercise of any such entitlement and the extent of any such exercise.
6
Provision under paragraph (4)(d) may require the employee to give notice to the employer about—
a
the amount of leave to which the employee would be entitled if the entitlement were fully exercised (disregarding for these purposes any intention of A to exercise an entitlement to leave under paragraph (1) or to statutory shared parental pay),
b
how much of the entitlement to leave the employee intends to exercise,
c
the extent to which A intends to exercise an entitlement to leave under paragraph (1) or to statutory shared parental pay.

Entitlement to shared parental leave: prospective adopters with whom looked after children are placed
107H
1
Regulations made under Article 107G(1) and (4) are to include provision for leave in respect of a child who is looked after by an authority and who is to be, or is expected to be, placed by the authority under Article 27(2)(a) of the Children (Northern Ireland) Order 1995, in the circumstances mentioned in paragraph (2), with an approved foster parent who is also an approved prospective adopter.
2
The circumstances are that—
a
the authority—
i
is considering adoption for the child, or
ii
has decided by virtue of regulation 11 of the Adoption Agencies Regulations (Northern Ireland) 1989 that it is satisfied that adoption is in the best interests of the child, and
b
such conditions as may be specified are satisfied.
3
Regulations made under Article 107G(1) and (4) are to provide for Articles 107G and 107I to have effect, in relation to provision made by virtue of paragraph (1), as if references to a child being placed for adoption under the law of any part of the United Kingdom were such references as may be specified.
4
In this Article, “approved foster parent”, “approved prospective adopter”, “authority” and “child who is looked after by an authority” have the same meaning as in Article 107AB.

Regulations under Article 107G: further provision
107I
1
Regulations under Article 107G are to include provision for determining—
a
the amount of leave under Article 107G(1) or (4) to which an employee is entitled in respect of a child,
b
when leave under Article 107G(1) or (4) may be taken.
2
Provision under paragraph (1)(a) is to secure that the amount of leave to which an employee is entitled in respect of a child does not exceed—
a
in a case where a person with whom the child is, or is expected to be, placed for adoption became entitled to adoption leave, the relevant amount of time reduced by—
i
where the person's adoption leave ends without the person's ordinary or additional adoption leave period having been curtailed by virtue of Article 107A(2A)(a) or 107B(3)(a), the amount of adoption leave taken by that person, or
ii
except where sub-paragraph (a)(i) applies, the amount of time between the beginning of the person's adoption leave and the time when the person's ordinary or additional adoption leave period, as curtailed by virtue of Article 107A(2A)(a) or 107(3)(a), comes to an end,
b
in a case where a person with whom the child is, or is expected to be, placed for adoption became entitled to statutory adoption pay but not adoption leave, the relevant amount of time reduced by an amount determined in accordance with paragraph (a) or, as the case may be, paragraph (b) of section 167ZX(2) of the Contributions and Benefits Act 1992.
3
In paragraph (2) “the relevant amount of time” means an amount of time specified in or determined in accordance with regulations under Article 107G.
4
Provision under paragraph (1)(a) is to secure that the amount of leave that an employee is entitled to take in respect of a child takes into account—
a
in a case where another person is entitled to leave under Article 107G in respect of the child, the amount of such leave taken by the other person,
b
in a case where another person is entitled to statutory shared parental pay in respect of the child but not leave under Article 107G, the number of weeks in respect of which such pay is payable to the other person.
5
In reckoning for the purposes of paragraph (2) the amount of adoption leave taken, a part of a week is to be treated as a full week.
6
In reckoning for the purposes of paragraph (4) the amount of leave under Article 107G taken during a period of such leave, a part of a week is to be treated as a full week.
7
Provision under paragraph (1)(b) is to secure that leave under Article 107G must be taken before the end of such period as may be specified.
8
Regulations under Article 107G are to provide for the taking of leave under that Article in a single period or in non-consecutive periods.
9
Regulations under Article 107G may—
a
provide for an employer, subject to such restrictions as may be specified, to require an employee who proposes to take non-consecutive periods of leave under Article 107G to take that amount of leave as a single period of leave, and
b
provide for a single period of leave that is so imposed on an employee to start with a day proposed by the employee or, if no day is proposed, with the first day of the first period of leave proposed by the employee.
10
Regulations under Article 107G may provide for the variation, subject to such restrictions as may be specified, of—
a
the period or periods during which an amount of leave under Article 107G is to be taken,
b
the amount of leave under Article 107G that the employee previously specified in accordance with provision by virtue of—
i
Article 107G(3)(b) or (6)(b), or
ii
paragraph (13)(b).
11
Provision under paragraph (10)(a) may provide for variation to be subject to the consent of an employer in specified circumstances.
12
Provision under paragraph (10)(b) may require an employee to satisfy specified conditions—
a
as to giving notice of an intention to vary the amount of leave under Article 107G to be taken by the employee,
b
if the employee proposes to vary the amount of leave under Article 107G(1) to be taken by the employee, as to the consent of P to that variation,
c
if the employee proposes to vary the amount of leave under Article 107G(4) to be taken by the employee, as to the consent of A to that variation.
13
Provision under paragraph (12)(a) may require an employee to give notice to the employer about—
a
the extent to which the employee has exercised an entitlement to leave under Article 107G(1) or (4) in respect of the child,
b
how much of the entitlement to leave the employee intends to exercise,
c
the extent to which a person other than the employee has exercised an entitlement to leave under Article 107G or to statutory shared parental pay in respect of the child,
d
the extent to which a person other than the employee intends to exercise such an entitlement.
14
Regulations under Article 107G may—
a
specify things which are, or are not, to be taken as done for the purpose of caring for a child,
b
make provision excluding the right to be absent on leave under Article 107G in respect of a child where more than one child is placed for adoption as part of the same arrangement,
c
specify a minimum amount of leave under Article 107G which may be taken,
d
make provision about how leave under Article 107G may be taken,
e
specify circumstances in which an employee may work for the employer during a period of leave under Article 107G without bringing the particular period of leave, or the employee's entitlement to leave under that Article, to an end,
f
specify circumstances in which an employee may be absent on leave under Article 107G otherwise than for the purpose of caring for a child without bringing the person's entitlement to leave under that Article to an end.
15
In this Article, “week” means any period of seven days.
16
The Department may by regulations provide that the following do not have effect, or have effect with specified modifications, in a case where a person who is taking adoption leave or is entitled to be paid statutory adoption pay in respect of a child dies before another person has become entitled to leave under Article 107G in respect of the child—
a
Article 107G(4)(b), (c) and (e),
b
Article 107G(5),
c
Article 107G(6)(c),
d
paragraph (12)(c),
e
paragraph (13)(c) and (d).

Power to apply Articles 107G and 107I to other cases
107J
1
The Department may by regulations provide for Articles 107G and 107I to have effect in relation to cases which involve adoption, but not the placement of a child for adoption under the law of any part of the United Kingdom, with such modifications as may be specified.
2
The Department may by regulations provide for Articles 107G and 107I to have effect in relation to cases which involve an employee who has applied, or intends to apply, with another person for a parental order under section 54 of the Human Fertilisation and Embryology Act 2008 and a child who is, or will be, the subject of the order, with such modifications as may be specified.
3
Where Articles 107G and 107I have effect in relation to such cases as are described in paragraph (2), regulations under Article 107G about evidence to be produced may require statutory declarations as to—
a
eligibility to apply for a parental order,
b
intention to apply for such an order.

Rights during and after shared parental leave
107K
1
Regulations under Article 107E or 107G are to provide—
a
that an employee who is absent on leave under that Article is entitled, for such purposes and to such extent as may be specified, to the benefit of the terms and conditions of employment which would have applied if the employee had not been absent,
b
that an employee who is absent on leave under that Article is bound, for such purposes and to such extent as may be specified, by obligations arising under those terms and conditions, except in so far as they are inconsistent with Article 107E(1) or (4) or 107G(1) or (4), as the case may be, and
c
that an employee who is absent on leave under that Article is entitled to return from leave to a job of a kind that may be specified, subject to Article 107L(1).
2
In paragraph (1)(a), “terms and conditions of employment”—
a
includes matters connected with an employee's employment whether or not they arise under the employee's contract of employment, but
b
does not include terms and conditions about remuneration.
3
The reference in paragraph (1)(c) to absence on leave under Article 107E or 107G includes, where appropriate, a reference to a continuous period of absence attributable partly to leave under one of those Articles and partly to any one or more of the following—
a
leave under the other of those Articles,
b
maternity leave,
c
paternity leave,
d
adoption leave, and
e
parental leave.
4
Regulations under Article 107E or 107G may specify matters which are, or are not, to be treated as remuneration for the purposes of this Article.
5
Regulations under Article 107E or 107G may make provision, in relation to the right to return mentioned in paragraph (1)(c), about—
a
seniority, pension rights and similar rights,
b
terms and conditions of employment on return.

Redundancy and dismissal
107L
1
Regulations under Article 107E or 107G may make provision about—
a
redundancy, or
b
dismissal (other than by reason of redundancy),
during a period of leave under that Article.
2
Provision made by virtue of paragraph (1) may include —
a
provision requiring an employer to offer alternative employment,
b
provision for the consequences of failure to comply with the regulations (which may include provision for a dismissal to be treated as unfair for the purposes of Part 11).

Chapter 1B: supplemental
107M
1
Regulations under Article 107E or 107G may—
a
make provision about notices to be given, evidence to be produced and other procedures to be followed by—
i
employees,
ii
employers, and
iii
relevant persons,
b
make provision requiring such persons to keep records,
c
make provision for the consequences of failure to give notices, to produce evidence, to keep records or to comply with other procedural requirements,
d
make provision for the consequences of failure to act in accordance with a notice given by virtue of sub-paragraph (a),
e
make special provision for cases where an employee has a right which corresponds to a right under Article 107E or 107G and which arises under the employee's contract of employment or otherwise,
f
make provision modifying the effect of Chapter 4 of Part 1 (calculation of a week's pay) in relation to an employee who is or has been absent from work on leave under Article 107E or 107G,
g
make provision applying, modifying or excluding any statutory provision, in such circumstances as may be specified and subject to any conditions which may be specified, in relation to a person entitled to take leave under Article 107E or 107G.
2
For the purposes of paragraph (1), “relevant person” means—
a
a person who, in connection with an employee's claim to be entitled to leave under Article 107E or 107G, is required to satisfy conditions specified in provision under Article 107E(2) or (5) or 107G(2) or (5), or
b
a person who is an employer or former employer of such a person.
3
In paragraph (2)(b) “employer”, in relation to a person falling within paragraph (2)(a) who is an employed earner, includes a person who is a secondary contributor as regards that employed earner.
4
The conditions as to employment or self-employment that may be specified in provision under Article 107E(2) or (5) or 107G(2) or (5) include conditions as to being in employed or self-employed earner's employment.
5
In paragraphs (3) and (4)—
- “employed earner” and “self-employed earner” have the meaning given by section 2 of the Contributions and Benefits Act 1992, subject for these purposes to the effect of regulations made under section 2(2)(b) of that Act (persons who are to be treated as employed or self-employed earners),
- “employment”, in the case of employment as an employed or self-employed earner, has the meaning given by section 121 of that Act,
- “secondary contributor”, as regards an employed earner, means a person who—
  1. is indicated by section 7(1) of that Act, as that subsection has effect subject to section 7(2) of that Act, as being a secondary contributor as regards the earner, or
  2. is indicated by regulations under section 7(2) of that Act as being a person to be treated as a secondary contributor as regards the earner
3
In Article 251 (orders and regulations), in paragraph (1A) (regulations to which confirmatory procedure applies), after “107B,” insert “ 107E, 107F(16), 107G, 107I(16), 107J(1) or (2), ”.
S. 2 in operation at 15.3.2015 by S.R. 2015/86, art. 3(1)(b)