One of my employees has told me that his girlfriend is expecting a baby in late April next year and that he wants to take shared parental leave. I am concerned by this, as I will have no way of knowing whether his girlfriend has gone back to work or not and therefore how much leave he is entitled to take – how can I check? Surely the system is open to abuse!
If an employee wishes to take shared parental leave, they are required to give you a signed notice of eligibility (including details of the amount of leave each of the partners will take), and employers are entitled to treat the contents of that declaration as being accurate. If you wish, we can provide you with a suitable form, which requires the employee gives you the necessary information.
There is no requirement for the employee’s partner to have returned to work in order for your employee to take shared parental leave, as both partners can be off at the same time. However, there is a maximum of 50 weeks of shared parental leave that can be shared between partners (the first 2 weeks after the birth are a compulsory maternity leave period).
If you were to subsequently discover that shared parental pay (ShPP) was incorrectly paid, you would then correct your records and would be able to recover wrongly paid ShPP as an overpayment of wages.
If you wanted to make enquiries of the girlfriend’s employer about the leave she is planning to take and when she is going back to work, you could, within 14 calendar days of receiving the notice from your employee, request that your employee provides contact details for his partner’s employer. If a request is made then these details must be provided within 14 calendar days.
Any investigations would need to be conducted carefully. ACAS best practice guidance states: “If an employer intends to contact the other employer, they should ensure that any actions are consistent with their policies/existing approach to conducting fair investigations, consider their data protection obligations and duty of confidentiality. An employer should approach each notification for SPL in a consistent and reasonable manner and ensure that they do not act in a way that could be interpreted as discriminatory.”
The answer is therefore that there are checks that you could make, but the expectation is that normally you would rely on the employee’s declaration. I appreciate however that there are situations where you may feel you need to investigate further.
If you would like to talk through a situation you are dealing with, or if you need advice on any aspect of employment law, please contact any member of the Pure Employment Law team (01243 836840 or [email protected]).