Relationship breakdown: a difficult issue

Dr Anne Sammon considers internal policies around shared parental leave.

As awareness of Shared Parental Leave (SPL) increases, HR professionals are beginning to think through various practical scenarios which may arise in order to test their policies and internal processes for dealing with SPL. One of those which is beginning to cause concern is the issue of relationship breakdown and how this might impact an employee who is eligible for SPL or who is on SPL at the relevant time.

There are two different scenarios. The first is that the employee is on SPL at the time of the relationship breakdown and ceases to live with the primary carer of the child (whilst this is most likely to be the mother, employers should be careful not to make this assumption when dealing with this or any similar scenario) and is no longer responsible for caring for the child. In these circumstances, under the SPL legislation, the employer does not have to allow the employee to immediately return to work; if it is not reasonably practicable to do so, the employer can postpone the employee’s return for up to eight weeks (which is the same amount of notice required to vary SPL in any event). The key question will be whether or not it is reasonably practicable to allow the employee to return.

Unfortunately there is no guidance on when it might be considered that it is not reasonably practicable to allow an employee’s early return to work. One factor that is likely to be relevant in this consideration relates to the nature of the cover for the employee on SPL. If a temporary replacement has been hired for a fixed-term and that contract is only terminable on notice, this may suggest that it is not reasonably practicable to allow the employee on SPL to return until the expiry of that notice. However, in a large organisation, employers may also be expected to consider whether it is possible to move the temporary replacement to another open role within the organisation - this is likely to depend on the nature of the role and the business’ needs.

In terms of practical pointers for employers, it is worth bearing in mind that any employee on SPL can elect to return earlier than they had originally planned by giving eight weeks’ notice. As such, where possible, if employers are hiring temporary replacement cover for such employees, they should ensure that contractually they are permitted to terminate the temporary arrangement on eight weeks’ notice or less.

The second scenario is that the employee is working, with their co-parent on SPL at the time that the relationship breakdown occurs and the co-parent on SPL chooses not to (or is unable to) continue to care for the child. The legislation appears to have given no consideration to this scenario. Under the legislation, the employee in question would need to give eight weeks’ notice in order to start a period of SPL.

Practically this may be very difficult for the employee and, in these circumstances, employers may wish to think about whether it might be appropriate to allow the employee to take some other form of leave before the employee’s SPL period commences. It may be that in these circumstances, the employee would have the right to time off to emergency dependants’ leave, as there would be an unexpected disruption in the arrangements for care of the child. Although an employee is only entitled to take a reasonable amount of time off where it is necessary for this purpose, it may be the case that if the child is particularly young, no alternative childcare is available.

There is no need for employers to deal with the above situations in their SPL policies, however, HR professionals should be aware of them and employers may wish to consider, in advance of an issue arising, how practically they might wish to approach these difficult issues.

This document (and any information accessed through links in this document) is provided for information purposes only and does not constitute legal advice. Professional legal advice should be obtained before taking or refraining from any action as a result of the contents of this document.