A closer look at maternity, paternity, shared parental and adoption rights
Employment legislation recognises that from time to time employees may need to take time away from their workplace to care for their families. The majority of the legislation related to Family Friendly rights are: Employment Rights Act 1996, the Employment Relations Act 1999, the Employment Act 2002 and the Work and Families Act 2006. Under these Acts are a number of rights that your employees may be eligible for, the CODE team recognise this and have put together guidance that will support you with understanding your obligations as employers.
Maternity leave and pay
Employees’ maternity rights include four main categories:
- Paid time off for antenatal care
- Maternity leave
- Maternity pay
- Protection against unfair treatment, discrimination or dismissal
All pregnant employees are entitled to time off for antenatal care paid at their normal rate of pay. It may include relaxation and parental classes as well as medical examinations. Except for the first appointment you may request written evidence of appointments such as an appointment card or a letter. Fathers and partners are now entitled to take unpaid time off to accompany their partners to up to two appointments of up to 6.5 hours each.
Eligible employees may take up to 52 weeks of statutory maternity leave (SML) following the birth of their child and subject to satisfying additional criteria 39 of those weeks will be paid at the statutory maternity pay (SMP) rate. The first 6 weeks of SMP is at 90% of the employee’s average weekly earnings and the remaining weeks at the lower rate of statutory maternity pay. The statutory maternity pay rates tend to increase each year in April, for the current rate please visit here.
In addition, the Equality Act 2010 prohibits pregnancy and maternity discrimination. During maternity leave an employee is entitled to benefit from all terms and conditions of her employment (e.g. accrual of her contractual holiday entitlement, the use of a company car or mobile phone) except remuneration. When returning from maternity leave, the employee is entitled to benefit from any improvements in pay and other benefits as if she hasn’t been away. At the end of ordinary maternity leave, the employee has the right to return to the same job with the same terms and conditions, an employee who returns to work after additional maternity leave is entitled to have the same job and the same terms and conditions as if she had not been absent, unless it is not reasonably practicable for you to take her back in her original job (e.g. her position became redundant). In this case we strongly recommend seeking bespoke advice to support you and mitigate your risks.
Paternity leave and pay
When an employee’s partner is having a baby, they may be entitled to Statutory Paternity Leave and Pay. Subject to satisfying an eligibility criteria, the employee can take up to two consecutive weeks leave (the leave entitlement remains the same even if they have more than one baby, e.g. twins, triplets etc). Leave must start on the actual date of birth or an agreed number of days after the birth/the expected week of childbirth and must be completed within 56 days of the actual date of birth (or due date if the baby is early).
The rate of statutory paternity pay is the same as the rate of Statutory Maternity Pay or 90% of average weekly earnings if this is less. The statutory pay rates tend to increase each year in April, for the current rate please visit here.
In addition to statutory paternity leave and pay, the employee may be entitled to unpaid leave to accompany their partner (the expectant mother) to two ante-natal appointments. The right is subject to satisfying the eligibility criteria and for a maximum of six and a half hours per appointment.
Adoption leave and pay
Adoption leave and pay are available to eligible employees who adopt a child on their own or to one member of a couple adopting jointly. Only one adoptive parent may take adoption leave, the other parent may be entitled to take paternity leave.
The Adoption rights loosely mirror that of Maternity rights. The main difference being the notifications that employees are required to provide. For UK adoptions, within seven days of being matched with a child, employees must inform the employer of how much leave they want, the proposed start date and the expected or actual date the child is placed with them (the ‘date of placement’). Leave can start up to 14 days before the child starts living with them. For overseas adoptions, the employee must inform you of the date of their ‘official notification’, the estimated date the child arrives in the UK (within 28 days of receiving the notification), the actual date the child arrives in the UK (within 28 days of this date) how much leave they want and the start date of the leave with 28 days’ notice.
The employee will be entitled to take time off to attend up to 5 paid adoption appointments (if you are a single or primary adopter) after hey have been notified by an adoption agency that a child is to be placed with them for adoption. The appointment must be arranged by or at a request of the adoption agency.
Eligible employees may take up to 52 weeks of statutory adoption leave (SAL) and, subject to satisfying additional criteria, 39 of those weeks will be paid at the statutory adoption pay (SAP) rate. The first 6 weeks of SAP is at 90% of the employee’s average weekly earnings and the remaining weeks at the lower rate of statutory adoption pay. The statutory pay rates tend to increase each year in April, for the current rate please visit here.
Shared parental leave and pay
In April 2015, legislation was introduced to allow parents to share the mother’s maternity leave with their partner. The Shared Parental leave and pay right applies to both opposite-sex and same-sex couples, and similar rights apply to couples who are adopting a child. Despite a government campaign to spread awareness and encourage more parents to take advantage of it, the take up has been far lower than expected.
To become eligible for Shared Parental Leave and Pay the mother and the partner must have worked for their respective employers continuously for at least 26 weeks up to the 15th week before the expected week of childbirth. The legislation enables the parents (or adopters) to share up to 50 weeks of leave (SPL) and up to 37 weeks of pay (SPP) between them, the leave can be taken in blocks or all in one go and they may also choose to be off work together or staggered. The statutory pay rates tend to increase each year in April, for the current rate please visit here.
*Small businesses may be able to recover the cost of SMP, SPP and SAP from the Government, the exact percentage that can be recovered is dependent on the annual National Insurance payments made by the business.
Unpaid parental leave
In addition to the right to take maternity, paternity and adoption leave employees who are eligible are entitled to take unpaid parental leave to look after their child’s welfare, e.g. to spend more time with the child, to settle into child care arrangements, to look at schools or to spend more time with the family. The employee rights are protected during this leave, for example, pay, holidays, returning to their role).
Employees are entitled to take up to 18 weeks leave for each child (or adopted child) up to their 18th birthday. The leave is unpaid, limited to 4 weeks per year and must be taken in blocks of a week.
To be eligible for unpaid parental leave the employee must have been continuously employed for a period of one year, be the biological or adoptive parent of the baby or a child or be the spouse/partner of the biological parent of the child for whom they have legal parental responsibility for and they must also take the leave before the child’s 18th birthday.
Emergency time off for dependants
Under the Employment Rights Act 1996, employers must provide employees with reasonable unpaid time off to deal with an emergency involving a dependant. The right is intended for genuine emergencies, not for longer term care, the right therefore wouldn’t apply if your employee knew about a situation beforehand. For example, the employee wouldn’t be covered if they wanted to take their child to hospital for a pre-booked appointment.
There is no limit on the number of times the employee can be absent from work under this right, the amount of time off, which is reasonable will vary according to the circumstances but in most cases, time off should not exceed 1 or 2 days.
For the purpose of this right, the term dependant is defined as a spouse, parent or child of the employee, or someone who lives in the household as part of the family, rather than being a lodger or a tenant.
CODE recommends considering each request on its own merit taking all factors into consideration. If your employees require additional time off, we would encourage that you ask them to request leave in the usual way.
Things to look out for in 2019/2020
Employees currently have the right to take a ‘reasonable’ amount of unpaid time off to deal with an emergency involving a dependant, this includes coping with a child’s death.
Effective from April 2020 is a Parental Bereavement (Leave and Pay) Act, which will set out a statutory entitlement of both leave and pay for parents and primary careers following the death of a child. Following feedback from a consultation in 2018, the eligibility criteria is likely to be widened to include adopters, foster parents and guardians, as well as close relatives or family friends who have taken responsibility for the child’s care in the absence of parents.
Employees with 26 weeks’ continuous service will receive two weeks leave paid at the statutory rate and employees who don’t meet the service criteria will be entitled to the leave unpaid if they suffer the loss of a child under the age of 18 or a stillbirth after 24 weeks of pregnancy.
The Government is also consulting on extending the maternity redundancy protection, if this bill is introduced it seeks to extend the current redundancy protection for pregnant employees and those on maternity leave for a further period of 6 months after the employee returns to the workplace. The law currently gives employee on maternity leave who are made redundant the right to be offered a suitable alternative, this right currently ends when they return.
Historically, there have been proposals to extend shared parental leave and pay rights to working grandparents, and although these have now been put on hold pending a full review into shared parental rights, the CODE team recommends keeping this on your radar. As the UK work force are working longer, it is a very real possibility that this will be introduced in the not so distant future.
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