Shared Parental Leave (SPL) lets eligible employees share 50 weeks of maternity leave (52 weeks less the compulsory two weeks) that a mother is entitled to.

In order to be eligible, the mother and partner (who can be the child’s father, or the mother’s spouse, civil partner or partner) must satisfy certain criteria.

In relation to the mother, her criteria includes length of service, being entitled to maternity leave and curtailing her maternity leave; while the partner’s criteria include satisfying the employment and earnings test (at least £116 a week) and having the main responsibility of the child (apart from any responsibility of the mother).

There was an expectation that following the introduction of the SPL regime, employers would see a fair few requests from their employees to take SPL.

However the Department of Business released statistics in February 2018 confirming that although 285,000 couples are eligible, the number taking SPL “could be as low as 2%”. In fact a government committee published a report in March titled “Fathers and the workplace” suggesting SPL should be scrapped and replaced with 12 weeks of paternity leave.

There has been speculation as to what the reasons are behind the low take up; cultural, financial, employer-related all being mooted.

The cultural reasons presumably exist as there can be prejudices aimed at women who take maternity leave so it is no surprise that men feel they may suffer in the same way.

However others suggest an ignorance from employees about whether they are in fact eligible for SPL. A study by University College London revealed 48% of families who qualify for SPL believe they are not eligible for it.

There is also the financial consideration as although a partner may be eligible for SPL, there is no requirement on employers to offer an enhanced shared parental pay scheme. For employers who only offer the statutory rates of pay, the fact that SPL will only be paid at the lower of: the prescribed rate (currently £145.18) or 90% of normal pay, demonstrates that SPL can raise affordability issues for employees.

There is also blame being attributed to employers, as some have suggested that employers discourage employees to take SPL – whether directly or indirectly. Some employers rely on the fact that they have no requirement to inform their employees about their SPL rights, however for the reasons outlined below it is advisable that they have appropriate policies in place even if they do not publicise it.

As the SPL process is notoriously complex (a further reason suggested for its low take up), legal advice is recommended when initiating SPL (for an employee) or drafting any documentation (for an employer).

It should be noted that any employee who requests SPL and/or takes it should not suffer any detriment because they have exercised their right to do so. If an employee does feel they have suffered detriment as a result, they can bring a discrimination claim.

A detriment can be an omission, so if the employee feels their employer is being obstructive, for example by not replying to emails requesting information about SPL, or the employer does not have a SPL policy, this may be sufficient to be deemed a discriminatory act.

If an employer deliberately suggests an employee is not entitled to SPL, a discrimination claim could be brought and potentially a claim for constructive unfair dismissal. However an employee should typically raise their concerns with their employer first (perhaps via a formal grievance) prior to initiating formal Tribunal proceedings.

Harry Abrams is a solicitor in the employment team at London law firm Seddons