28 May 2015
Can my employer refuse my request for Shared Parental Leave?
Under the Shared Parental Leave regulations, you must give your employer eight weeks’ notice of your intention to take Shared Parental Leave to look after your child. It is advisable to give your employer notice in writing and you should state clearly when the baby is due to be born and when exactly you want to start your leave. Also remember that Shared Parental Leave must be booked in block periods. This means that you would have to take whole weeks rather than days off.
Provided you and your partner are eligible and you request a continuous block of leave, your employer must allow you to take it.
However, if you are proposing a discontinuous notice of leave in a single booking, your employer is allowed to refuse your request.
If your employer refuses your request for discontinuous leave, you can take your leave as a single continuous block at a time and date of your choosing (no less than 8 weeks from the date your notice was given).
You would have 5 days in which to tell your employer the date you intend to start your leave. If you don’t specify a date, the leave will begin on the date of the first period of discontinuous leave in your original application.
You also have the option of withdrawing your notice altogether if your employer refuses your request or if they do not respond within the two week discussion period.
If your employer refuses your first request for Shared Parental Leave, fortunately you are entitled to make two more requests at any time before your child’s first birthday.
It is important to note that an employee has the right not to be subjected to any unfair treatment by any act or failure to act by his or her employer. In particular, your employer must not subject you to unfair treatment because:
1. You have taken, made use of the benefits of Shared Parental Leave or sought to take Shared Parental Leave
2. Your employer believed that you were likely to take Shared Parental Leave
3. You undertook, considered undertaking, or refused to undertake work during a Shared Parental Leave in Touch (“SPLIT”) day. Click here for further information relating to SPLIT days.
In addition, the Shared Parental Leave regulations provide protection from unfair dismissal. You may have a claim for automatic unfair dismissal if the reason, or principal reason, for a dismissal is connected with any of the above factors. This applies to dismissals where the effective date of termination of employment is on or after 1 December 2014.
Also, where the above criteria apply and an employee is made redundant, she or he may also have a claim for automatic unfair dismissal in certain situations and possibly unlawful discrimination. In any event, you should seek legal advice from solicitors specialising in employment law if you are unsure of your rights.
From a practical view point, it is always a good idea to have an early discussion with your employer about the options available to you and to find out what discontinuous leave arrangements your boss may be agreeable to. You should also discuss with your boss how they could accommodate the leave. You should have these discussions from the outset and before any formal booking notices are given so that both parties are clear about the potential arrangement.
For more details relating to the practicalities of taking Shared Parental Leave, click here.
For details relating to eligibility and entitlements during Shared Parental Leave, click here.
If your employer has refused your request for continuous leave or if you think your employer may be discriminating against you because of your request to take Shared Parental Leave, contact our expert employment lawyers on freephone 0800 916 9060 or contact us online.