Overview of Parental Rights

What rights do parents have in the workplace?

• Rights during pregnancy and after the birth of the baby i.e. ordinary maternity leave, additional maternity leave and maternity pay.
• Rights on returning to work after maternity leave.
• Paternity leave and pay.
• Adoption leave and pay.
• Parental leave.
• Time off to care for dependents.
• The right to request flexible working.

What are the rights during pregnancy?

• Right to paid time off for ante-natal care.
• The right for a health and safety risk assessment to be carried out on their working environment including working conditions and hours.

What period of leave is a pregnant employee entitled to?

Babies due on or before 31st March 2007

• Regardless of the length of service a woman has a right to up to 26 weeks Ordinary Maternity Leave.
• If an employee has completed 26 weeks’ continuous service by the 15th week before the baby is due they will also be entitled to take Additional Maternity Leave for a further 26 weeks.

Babies due on or after 1st April 2007

• Mothers will be entitled to up to 26 weeks Ordinary Maternity Leave and may take a further 26 weeks Additional Maternity Leave regardless of their length of service.

Is there a minimum period of maternity leave an employee must take?

• An employee must take a minimum of 2 weeks’ leave directly after the birth of her baby or 4 weeks if she works in a factory environment.

What is an employee entitled to be paid during Maternity Leave?

Babies due on or before 31st March 2007

• In general, employees who meet various conditions including 26 weeks continuous service by the 15th week before the baby is due and who earn at least the lower earning limit for Class 1 NI contributions will be entitled to Statutory Maternity Pay during 26 weeks of Ordinary Maternity Leave.

Babies due on or after 1st April 2007

• Employees will be entitled to receive Statutory Maternity Pay (subject to qualifying conditions) for 39 weeks.

N.B Employees who are not entitled to Statutory Maternity Pay may be entitled to Maternity Allowance and should apply for this via the Department for Work and Pensions.

Does a Woman have the right to return to the same job?

• If an employee returns to work after Ordinary Maternity Leave she is entitled to return to the same job she had before her absence at the same rate of pay taking into account any pay increases awarded during her period of leave. She should also receive the same benefits.
• When returning after Additional Maternity Leave an employer can ask her to return to a different job if it is not reasonably practical for her to be reinstated in her old job. She should be offered a different job that is both suitable and appropriate in all the circumstances. This means that her terms and conditions should not be less favourable than those of her original job and the new job should have the same level of responsibility, seniority and pay.

How much notice does an employee need to give if they wish to return to work earlier than their expiry of their maternity leave?

Babies due on or before 31st March 2007

• Mothers have to give 28 days advance notice.

Babies due on or after 1st April 2007

• Mothers will have to give 8 weeks notice if they intend to return to work early.

Can an employee work during their maternity leave without losing their right to statutory maternity pay?

Babies due on or before 31st March 2007

• If a mother does any work for her employer in any particular week, she is disqualified from receiving Statutory Maternity Pay for that week.

Babies due on or after 1st April 2007

• Mothers on maternity leave will be able to do some limited work of up to 10 days for the employer whilst they are off, without losing their right to be paid Statutory Maternity Pay. These are called “keeping in touch days”. An employer can also make ‘reasonable contact’ with the mother whilst she is on maternity leave.

Are fathers allowed time off after the birth of their child?

• Fathers of a new-born child may be entitled to paternity leave to care for the new-born child or to support the child’s mother.
• This right also extends to employees who are a mother’s husband or partner, but not the child’s father, and who expect to have responsibility for the up-bringing of the child.
• To qualify for this right the employee must have worked for their employer for at least 26 weeks prior to the 15th week before the baby is due.
• The leave can be taken in a block of 1 week or 2 consecutive weeks. It cannot be taken in odd days. It must be taken within 56 days of the birth of the child or 56 days after the first day of the expected week of birth if the child is born early.
• During paternity leave the terms and conditions of employment will continue and an employee may be entitled to Statutory Paternity Pay.
• It is intended that additional paternity leave and pay will be introduced before the end of this parliament. This is expected to allow eligible fathers to be absent from work for up to 26 weeks to care for a child. This leave will have to be taken before the child’s first birthday and the father may be eligible to receive up to 26 weeks of ‘additional statutory paternity pay’. In order for the father to be eligible for these additional rights the mother must not have used up all of her maternity entitlements when she returns to work.

What about time off to spend with young children?

• As well as maternity and paternity leave parents are also entitled to parental leave.
• This means that parents who fulfil qualifying conditions are entitled to take up to 13 weeks unpaid parental leave or 18 weeks for a disabled child. In general, parental leave is available to employees with one year’s service who have responsibility for a child.
• The leave must be taken for the purpose of caring for the child.
• The leave may be taken at any time up to the child’s 5th birthday.
• The leave is unpaid.
• The leave is for a maximum of 13 weeks. Therefore if an employee takes 3 weeks parental leave and then changes their job they will only be entitled to a further 10 weeks from their new employer.

Must I allow an employee time off if their child is ill?

• The right to time off to care for dependents is available to all employees. The reasons time off may be taken are:-
• When a child is ill or injured;
• To make arrangements to provide care for a child who is ill or injured;
• Due to the death of a child ;
• Due to unexpected disruption of arrangements made to care for a dependent;
• To care for a child during time when their school is unable to care for them;
• The period of time taken off must be reasonable and necessary and is not paid.

I have had a request for an employee to work flexibly. Do I have to agree?

• An employee who is a parent has the right to request flexible working arrangements. This does not mean that an employee has the right to work flexibly.
• In order to be able to apply for flexible working an employee must:-
• Be continuously employed for a period of more than 26 weeks;
• Be the mother, father, adopter, guardian or foster parent of the child, or married to or the partner of such person;
• Have or expect to have responsibility for the upbringing of the child.
• An employer must consider a request for flexible working. However, if they can show that the arrangement would not be suitable they can refuse an application. The refusal must be on a statutory ground for example:-
• Burden of additional costs;
• Detrimental effect on the ability to meet customer demand;
• Inability to reorganise work among existing staff;
• Inability to recruit additional staff;
• Detrimental impact on quality;
• Detrimental impact on performance;
• Insufficiency of work during the period the employee proposes to work.
• If a refusal complies with flexible working rights, it may still however amount to indirect sex discrimination.

Adoption Leave and Pay

• In general, the same rights afforded to employees having babies or with children are also applied to individuals adopting babies and children.

Remember

The law sets out the minimum entitlement. Many businesses provide contractual rights over and above that set out by statute. If your business provides more robust policies then you must abide by these.

For further information and advice, please contact:

 

For more information please contact

Carol Shaw
Partner

Philomena Price
Solicitor