Given the number of rules surrounding parental rights, you could be forgiven for not knowing where you stand if an employee becomes pregnant or responsible for a child. But with tribunals making large awards against employers who ignore the rules, you cannot afford to stick your head in the sand.
You need to be clear about employees’ rights and your responsibilities to minimise disruption and prevent disputes.
This briefing covers:
- Ordinary and additional maternity leave, paternity and adoption leave.
- Shared parental leave.
- Other leave for parents.
- Time off for dependants.
- How to avoid the legal pitfalls.
Pregnant employees and new mothers have a number of rights including:
1.1 The right not to be dismissed because of pregnancy, maternity leave or childbirth.
1.2 The right to return to work.
- You must consider any request to return to work flexibly. If it is not possible, you need to explain why, with business reasons.
- Refusal to offer a part-time option may amount to indirect sex discrimination. It may also fall foul of flexible working regulations - all employees with at least 26 weeks’ service have the right to request flexible working.
- There are few jobs that cannot be done on a part-time or job-share basis.
- Refusal to allow a woman to return to work after maternity or parental leave is automatically unfair.
1.3 The right to paid time off for ante-natal care and classes.
- You can ask to see an appointment card or similar evidence.
1.4 The right to all her normal terms and conditions, except wages or salary, throughout ordinary and additional maternity leave (see 3).
- Keep employees informed of opportunities for promotion and training or they may have a complaint of discrimination.
1.5 The right to Shared Parental Leave and Statutory Shared Parental Pay.
1.6 You must carry out a health and safety risk assessment. If it highlights risks which might affect a pregnant woman or her baby, she has the right to be offered suitable alternative work, or to be suspended on normal pay.
- You must take action to ensure pregnant employees are not exposed to those risks.
2.1 Every pregnant employee is entitled to 26 weeks’ ordinary maternity leave.
- Part-time employees have the same rights as full-timers.
2.2 The employee must notify you, in writing if requested, that she is pregnant, and give notice of several key dates. She must:
- Tell you her expected week of childbirth (the EWC). You can ask for evidence of the EWC from her GP or midwife.
- Choose when to start her maternity leave, any time from the 11th week before the EWC, and inform you of the start date by the 15th week before the EWC or at least 28 days before her leave is due to begin. Depending on the circumstances, leave may even start on the day of the birth.
- Tell you when she has had the baby.
- Give eight weeks’ notice if she wants to return to work before the end of her maternity leave (16 weeks’ notice if she has adopted employee-owner or employee-shareholder status).
2.3 You must write to her within 28 days of being told when she intends to start her leave, setting out the date on which her leave will end.
- If this is the date on which she intends to return to work, she need do nothing more.
2.4 It is illegal for a woman to return to work within two weeks of giving birth (four weeks for factory workers).
2.5 It is automatically discrimination if you dismiss an employee during her maternity leave, or select her for redundancy, wholly or mainly because she is pregnant, has taken maternity leave or has given birth (see 9.1).
2.6 If an employee is ill during her pregnancy, she is still entitled to take sick leave.
- If she is absent from work with a pregnancy-related illness in the four weeks before her EWC, her maternity leave will start automatically.
- If she is too ill to return to work at the end of her maternity leave, you must treat it as a sickness absence.
- If the absence persists, you may eventually need to follow your dismissal procedure.
You must only consider absence following her return from maternity leave to avoid the risk of an unfair dismissal claim.
2.7 A qualifying a woman whose baby dies, or is stillborn, after the 24th week of pregnancy is still entitled to ordinary maternity leave, additional maternity leave and statutory maternity pay.
2.8 Many pregnant women on ordinary maternity leave are entitled to statutory maternity pay (SMP). SMP is paid at 90% of average weekly earnings (AWE) for the first six weeks followed by £139.58 per week or 90% of AWE (if lower) for the next 33 weeks.
3.1 Every pregnant employee is entitled to 26 weeks’ additional maternity leave (AML).
- AML starts at the end of ordinary maternity leave.
- Women on AML continue to benefit from all their contractual rights (except remuneration). They are entitled to accrue statutory paid annual leave (5.6 weeks, pro rata for part-timers).
- Contractual matters may be negotiated and agreed between you and the employee.
3.2 After her AML, the employee is entitled to come back to the same kind of job, or to a suitable alternative where this is not possible. Any alternative must be appropriate and provide equivalent pay and conditions.
3.3 If the employee is unfit to return, she will be regarded as off sick and she may qualify for sick pay.
- If the absence continues and you wish to dismiss the employee, you must implement your full dismissal procedure.
You must ignore the additional maternity leave and only take account of subsequent absences.
4.1 Fathers (or those with responsibility for bringing up children) are entitled to paid time off at or around the birth.
- They can take either one or two continuous full weeks’ ordinary paternity leave.
- This leave must be taken within 56 days of the birth (or the EWC if the birth is early).
- They are entitled to statutory paternity pay of £139.58 a week or 90% of AWE if lower. The employer can set this off against NI contributions.
4.2 Employees must:
- have 26 weeks’ continuous service by the end of the 15th week before the EWC.
- have (or expect to have) responsibility for bringing up the child.
- give adequate notice (at least 28 days).
4.3 Fathers, partners and parents have the right to take unpaid time off work to attend up to two ante-natal appointments.
5.1 An employee with 26 weeks’ continuous service by the time they are matched with a child, who adopts a child from a UK adoption agency is entitled to up to 26 weeks’ ordinary adoption leave and up to 26 weeks’ additional adoption leave.
- They are also entitled to statutory adoption pay of 90% of AWE for the first six weeks followed by £139.58 per week or 90% of AWE if lower for up to 39 weeks.
- Where the child has been adopted by a couple, the other partner may be entitled to paternity leave (see 4.1-4.3).
5.2 There are conditions to this entitlement.
- There must be an agreement to adopt. You are entitled to ask for evidence.
- The employee and child must be newly matched by an adoption agency. Adopting within the family, or an existing foster child, does not count.
5.3 The employee must give reasonable notice.
- This must be at least 28 days before the date the agency expects to place the child.
- The start date can be changed but the employee must give you 28 days’ notice.
Both mothers and fathers are entitled to time off to look after their children.
6.1 They are entitled to 18 weeks’ unpaid parental leave per child.
- This entitlement must normally be taken before the child’s 18th birthday.
- Parents of adopted children have the same entitlement as birth parents.
- You must agree to the leave. If you cannot reach agreement, the fallback position is that not more than four weeks’ leave per child per year may be taken. Leave must be taken in weekly blocks unless you agree otherwise or the child is disabled.
- Unless immediately following birth or adoption, you can ask to postpone the leave for up to six months if it would seriously disrupt the business. However, you cannot postpone the leave if it will mean the parent is no longer eligible.
- If the employee disagrees, he or she has the right to go to a tribunal.
6.2 Parents must have one year’s continuous service to qualify.
6.3 They must give you reasonable notice (this normally means at least 21 days).
Shared Parental Leave (SPL) and Statutory Shared Parental Pay (ShPP) has now been introduced. The new system offers parents more flexibility to arrange time off in the year after the birth or adoption of their child.
7.1 Employees can take SPL in up to three seperate blocks. They can also share the leave with their partner and choose how much time off each of them will take. SPL and ShPP must be taken between the baby’s birth and first birthday (or within one year of adoption).
7.2 An employee must give at least eight weeks’ notice of any leave. SPL can be used alongside, or instead of, traditional maternity, adoption and paternity leave.
7.3 SPL is available for babies and children due or adopted on or after 5 April 2015.
7.4 To qualify for SPL, the child’s mother (or adoptive parent) must have worked for you continuously for at least 26 weeks by the end of the 15th week before the EWC and be eligible for either maternity leave or pay, Maternity Allowance or adoption leave or pay.
The mother must take at least two weeks off following the birth of her baby (four weeks if she works in a factory).
Eligible employees can take the remaining leave (up to maximum of 50 weeks) as SPL and the remaining pay (up to a maximum of 37 weeks) as ShPP.
- Your employee must be employed by you whilst on SPL.
7.5 Your employee can get ShPP if they:
ShPP is paid at the rate of £139.58 a week or 90% of AWE, whichever is lower.
- Qualify for statutory maternity pay or statutory adoption pay;
- Or they qualify for statutory paternity pay and have a partner who qualifies for statutory maternity pay or maternity allowance or statutory adoption pay.
7.6 Your employee can also work up to 20 days during SPL without bringing it to an end. These are called "shared parental leave in touch" (or SPLIT) days.
In an emergency, employees are entitled to ask for ‘reasonable’ time off to care for dependants. Time off is unpaid unless your employment contracts state otherwise.
8.1 This is for short-term problem solving rather than continuing care.
- The problem must be unforeseen. For example, sudden illness. Where problems are foreseen, other arrangements should be made.
- You must decide what ‘reasonable’ time off is.
8.2 The problem must involve dependants.
- This normally means employees’ children, parents or other close family members.
- But it might also mean a frail neighbour who is looked after by your employee.
8.3 If you think an employee is abusing the system, you can refuse time off.
- You can, if necessary, investigate or institute disciplinary proceedings.
9.1 Dismissing somebody pregnant is automatically unfair, and almost certainly discriminatory if the dismissal is due to pregnancy, or any reason connected with it.
- The employee has the right to written reasons if she is dismissed during pregnancy or statutory maternity leave.
- If a tribunal finds you have dismissed your employee unfairly, the basic award can be up to £14,250. The tribunal can also award compensation for financial loss up to a maximum of £78,335.
- If a tribunal finds your actions amounted to sex discrimination, it can award unlimited compensation.
9.2 If you make someone redundant during pregnancy or maternity leave, you must be able to show that your selection is objective, fair and in no way affected by the pregnancy or maternity leave.
- This is so hard to prove that you should avoid this situation, unless the reason is very clear.
A woman on maternity leave has the right to be offered a suitable job on her return, or the right to a redundancy payment.