Chapter 5 - Family Friendly Rights

Question 1

Who is entitled to time off for antenatal care and should it be paid time off?

Answer 1

All employees, there is no minimum qualifying period. s.55 ERA

The time off should be paid. s.56 ERA. Employees cannot be asked to re-arrange their hours to make up for hours missed.

Question 2

Can an employer refuse a request for time off for antenatal care?

Answer 2

Time off must not be unreasonably refused for appointments made on the advice of a registered GP, midwife or health visitor.

The question of what is an unreasonable refusal is not addressed in the legislation and there is little case law on the matter. Practitioners suggest that a common-sense approach should be adopted and matters such as business needs, staffing levels and whether such an appointment could be taken outside working hours, particularly for part-time employees, would all be reasonable factors to consider.

Question 3

What is antenatal care?

Answer 3

Antenatal care is not defined in the legislation but case law suggests that it can cover things like relaxation classes (Gregory v Tudsbury Ltd [1982]).

Question 4

What can an employee do if time of for antenatal care is unreasonably refused?

Answer 4

A complaint can be made to the ET under s57 ERA 1996. Any claim must be made to the ET within three months. The ET can make a declaration under s57(3) ERA 1996 and order the employer to pay the employee the relevant salary if the leave was unreasonably refused or unpaid.

Question 5

Are Father’s entitled to any leave to accompany the Mother for antenatal care visits?

Answer 5

Fathers, or partners of a pregnant woman, have a right to time off to attend up to two antenatal appointments with the mother. There is no statutory entitlement to be paid for this time off but the employee’s contract may provide for payment.

Question 6

What is Ordinary Maternity Leave (OML)?

Answer 6

All pregnant employees are entitled to 26 weeks’ OML, regardless of length of service or hours worked (reg 7 MPLR 1999). OML commences on the earliest of:

(1) the date the employee has notified her employer as the date she intends her OML to start, which at the earliest can be the 11th week before the expected week of childbirth (EWC); or
(2) the first day after the beginning of the fourth week before the EWC on which she is absent from work wholly or partly because of the pregnancy; or
(3) the day after the date on which the baby is born.

Question 7

What is Compulsory Maternity Leave?

Answer 7

An employer may not permit an employee to work for the first two weeks after childbirth (four weeks if the woman works in a factory or similar environment). An employer who breaches this provision is liable to a fine not exceeding level 2 on the standard scale. (s72 ERA 1996 and reg 8 MPLR 1999)

Question 8

What is Additional Maternity Leave (AML)?

Answer 8

All employees are entitled to AML. AML follows immediately after the end of OML and lasts for up to a further 26 weeks (reg 7 MPLR 1999). There is no qualifying period for this entitlement.

Question 9

Are employees on Maternity leave still entitled to the same benefits of their terms and conditions as if they were not absent?

Answer 9

Yes, except for those that relate to remuneration. Rights in relation to sickness insurance or holiday entitlement, for example, continue (Merino Gómez v Continental Industrias del Caucho SA [2004]).

Question 10

What are keeping in touch (KIT) days?

Answer 10

The MPLR 1999 were amended in 2006 to introduce keeping in touch (KIT) days. A woman can work up to 10 KIT days during her maternity leave without losing any entitlement to SMP. There is no obligation on the woman to work any KIT days that are offered, and no obligation on the employer to offer any KIT days. The law does not provide for KIT days to be paid, but an agreement relating to payment can be reached between the employee and the employer.

Question 11

What notice is an employee required to provide in relations to Maternity Leave?

Answer 11

A woman is required, no later than the end of the 15th week before the Expected Week of Childbirth (EWC), to inform her employer of:

1. her pregnancy;
2. her EWC (supported by a medical certificate if her employer so requests); and
3. the date on which she wishes to start her leave (in writing if her employer so requests).

If a woman wishes to change the starting date of her OML, she must give her employer 28 days’ notice.

Question 12

What is a woman entitled to after her Maternity Leave has ended?

Answer 12

A woman is entitled, after a period of OML, to return to her former job (s71(4)(c) ERA 1996).

After a period of AML, an employee is entitled to return to the work in which she was employed, or if this is not reasonably practicable for the employer, to an alternative suitable and appropriate job on the same terms and conditions as her previous job (regs 18 and 18A MPLR 1999).

The employer must take care to ensure that a job that is offered to a woman on her return from maternity leave is suitable. (Kelly v Secretary of State for Justice [2013])

Question 13

Does a woman need to give notice to return to work after her Maternity Leave?

Answer 13

A woman returning to work at the end of her OML or AML is not required to give her employer notice of her return. She can simply come back to work on the first working day after her leave ends.

If she wishes to return early from OML or AML or earlier than the date she originally informed the employer she intended to return, she must give her employer at least eight weeks’ notice of the date on which she intends to return to work.

A woman who does not return on the agreed date is treated as being absent without authorisation. An investigation into the situation should then take place, as it would for any unauthorised absence.

Question 14

For what reasons will it be automatically unfair to dismiss or select a woman for redundancy?

Answer 14

Regardless of length of service, an employee will be automatically unfairly dismissed if the reason for the dismissal relates to pregnancy, childbirth or maternity, or any category of maternity leave. (ss99(3)(a) and (b) ERA 1996)

It will also be unfair to select a woman for redundancy for any of these reasons. (reg 20(2) MPLR 1999).

These provisions are interpreted broadly. (Patefield v Belfast City Council [2001] )

Question 15

What can an employee do if they are subjected to a detriment related to pregnancy or taking maternity/parental leave?

Answer 15

Under s47C ERA 1996 and reg 19 MPLR 1999, employees have the right not to be subjected to a detriment by their employer for any reason connected with pregnancy or taking maternity/parental leave.

Employees can make a claim to an ET if they are subjected to a detriment and may be awarded compensation (ss48–49 ERA 1996).

Question 16

What constitutes discrimination under the protected characteristics of pregnancy/maternity under s18 EA?

Answer 16

An employer discriminates against a woman if they treat her unfavourably because:

1. of the pregnancy or an illness resulting from it;
2. she is on compulsory maternity leave; or
3. she is exercising, seeking to exercise or has exercised, the right to ordinary or additional maternity leave.

Question 17

What conditions must a woman satisfy in order to bring a s.18 for discrimination on the basis of pregnancy/maternity?

Answer 17

1. the treatment must take place during the protected period (the date from which the employee informs her employer that she is pregnant until the end of her maternity leave); and
2. the treatment must relate to her pregnancy.

Question 18

Under the Social Security Contributions and Benefits Act what conditions must an employee meet to be entitled to Statutory Maternity Pay?

Answer 18

1. has been continuously employed for a period of at least 26 weeks by the 15th week before the EWC.
2. has normal earnings that are no less than the lower earnings limit for national insurance
3. has normal earnings that are no less than the lower earnings limit for national insurance
4. has provided a certificate confirming that she is pregnant and stating the EWC

Question 19

How long is Statutory Maternity Pay payable for?

Answer 19

39 weeks beginning with the first full week of absence. It cannot be paid earlier than 11 weeks before the EWC.

it is paid by the Employer to the Employee and cannot be paid at the same time as Statutory Sick Pay.

Question 20

What can an employee have if they are not eligible for Statutory Maternity Pay?

Answer 20

They can claim Maternity Allowance from the state for 39 weeks. It is paid at the same flat rate as Statutory Maternity Pay.

Question 21

What are the two rates of Statutory Maternity Pay?

Answer 21

1. the earnings-related rate: 90 per cent of the woman’s normal weekly earnings, payable for the first six weeks;
2. the flat rate: 90 per cent of the woman’s normal weekly earnings, or the statutory rate (£151.20 from 5 April 2020), whichever is the lower, payable for the remaining 33 weeks.

Question 22

How does Adoption leave work?

Answer 22

The structure of adoption leave mirrors maternity leave, in that there are 26 weeks of OAL followed by 26 weeks of AAL. SAL can be taken by just one of the parents who adopts the child, not both.

Question 23

How does an employee qualify for Statutory Adoption Leave?

Answer 23

1. be newly matched with a child for adoption, and have agreed with the adoption agency a date for the adoption; and
2. notify their employer that they wish to take SAL no less than seven days after the date on which they are informed of the matching, unless that is not reasonably practical.

If so, the employee must tell the employer as soon as is reasonably practical. The employee must inform their employer of the date on which the placement is to take effect and the date on which they wish to start SAL

Question 24

How does Statutory Adoption Pay work?

Answer 24

Statutory adoption pay is for 39 weeks. This mirrors SMP so there is enhanced pay of 90 per cent of salary for the first six weeks and then up to 33 weeks at the flat rate of £151.20.

An employee can start OAL on the date on which the child is placed with them for adoption, or on a date that is no more than 14 days before the child is expected to be placed, and no later than the day of placement.

Question 25

How does an employee qualify for Ordinary Paternity Leave?

Answer 25

To be eligible for paternity leave the employee must:

1. have 26 continuous weeks’ service with the same employer by the end of the 15th week before the child is expected to be born or adopted; and
2. have a relationship with the new-born or newly adopted child and the mother or adoptive parent; and
3. expect to be parenting the new-born child or child placed for adoption.

Question 26

What must an employee do to take Ordinary Paternity Leave?

Answer 26

At least 15 weeks before the EWC, the employee must inform their employer of the baby’s due date, when they want their leave to start, and how much leave they want to take.

The employer can request a declaration from the employee confirming that the employee has the right to OPL. If the employee wishes to change the dates on which they intend to take OPL, they must give 28 days’ notice to their employer.

The employee can choose to take either one or two weeks’ leave, taken consecutively, and this must be taken within 56 days of the birth or adoption.

The employee has the right to return to the same job and is protected from unfair dismissal for exercising this right.

Question 27

How does Statutory Paternity Pay work?

Answer 27

Subject to giving appropriate notice to their employer, an employee who meets the qualifying criteria for ordinary paternity leave and earns at least the lower limit for national insurance (£120) is entitled to be paid the lower of the statutory rate (£151.20) per week and 90 per cent of his average weekly earnings during his paternity leave.

Question 28

What is Shared Parental Leave?

Answer 28

SPL is an entitlement to take time off work following a birth or adoption. The leave must be taken between the baby’s birth and first birthday (or within one year of adoption). It can be taken in one continuous period or in up to three separate blocks (of at least a week each).

Question 29

When can Shared Parental Leave be taken?

Answer 29

SPL can only be taken if the employee or their partner ends their maternity or adoption leave or payments early. This can be done by either by:

1. returning to work or
2. giving the employer binding notice of the date when they will end their maternity or adoption leave or
3. ending their maternity pay or maternity allowance

The remaining leave will then be available as SPL. The remaining pay may be available as ShPP.

A mother must take a minimum of two weeks’ maternity leave following the birth (four if she works in a factory), whether the remainder of her leave is shared or not.

Question 30

Who is eligible for Shared Parental Leave?

Answer 30

For either parent to qualify for SPL, the child’s mother (or adoptive parent) must be eligible for one of maternity leave, pay or allowance, or adoption leave or pay. The employee who wishes to take SPL must also satisfy the continuity of employment test, and their partner (who they want to share parental leave with) must satisfy the employment and earnings test.

Question 31

What is the continuity of employment test?

Answer 31

The employee seeking SPL must:

1. have worked for the employer continuously for at least 26 weeks by the end of the 15th week before the due date (or the date they are matched with their adopted child);
2. still be employed by the employer while they take SPL;
3. give the employer eight weeks’ notice of their intention to take SPL and a period of leave notice, indicating how much leave is to be taken.

These notices can be given together but the period of leave notice cannot be given before the notice of intent to take SPL.

The employee must also provide a declaration that their partner meets the employment and income requirements which allow the employee to receive SPL.

Question 32

What is the Employment and Earnings test?

Answer 32

The partner of the employee seeking SPL must:

1. have been working for at least 26 weeks during the 66 weeks before the EWC or the week the adoptive parent is notified of being matched with a child; and
2. must have earned at least £390 in 13 of those 66 weeks. These do not need to be consecutive weeks.

Question 33

What is Shared Parental Pay?

Answer 33

ShPP is a statutory entitlement to a fixed rate of pay during SPL (currently £151.20 or 90 per cent of an employee’s average weekly earnings, whichever is lower).

It is payable to an employee who either:

1. qualifies for SMP or SAP or
2. qualifies for SPP and has a partner who qualifies for SMP, maternity allowance or SAP.

An employee’s contract of employment may provide for enhanced rights to leave and pay.

Question 34

Can an employer refused Shared Parental Leave or Pay?

Answer 34

An employer can refuse SPL or ShPP if the employee does not qualify. The employer must tell the employee the reason for their decision if ShPP is refused. There is no statutory requirement to provide a reason for refusing SPL, although it is clearly good practice to do so.

An employer cannot refuse a request for one continuous block of leave if the employee is eligible and gives the right notice. However, an employer does not have to agree to the employee breaking the block of leave into shorter periods.

Question 35

Who is entitled to unpaid parental leave?

Answer 35

An employee of either sex with at least one year’s qualifying service can take 18 weeks’ unpaid leave in total, but no more than four weeks in a one-year period, to care for a child under 18 years of age for whom the employee has parental responsibility as defined in the Children Act 1989.

Leave must be taken in weekly blocks; a period which is less than a week will be counted as having lasted for one whole week.

Question 36

How much notice must an employee give to request unpaid leave?

Answer 36

The employee is normally required to give 21 days’ notice of the dates on which the parental leave will begin and end and to provide the employer with such evidence as the employer reasonably requires that the employee is eligible for such leave.

Question 37

Can an employer postpone a period of unpaid parental leave?

Answer 37

The employer has the right to postpone an employee’s period of parental leave for up to six months if they consider that the operation of their business would be unduly disrupted. In such cases, the employer must inform the employee, within seven days of the employee’s notice to the employer, of the reason for the delay and the dates on which the leave may begin and end. The dates must be determined in consultation with the employee.

These procedural matters are default provisions; individual contracts of employment may contain different terms for agreeing when parental leave may be taken. The employee is entitled to return to their previous job.

Question 38

What can an employee do if they believe their employer has unreasonably postponed parental leave?

Answer 38

s80 ERA 1996 gives employees the right to complain to an ET if the employer has unreasonably postponed parental leave, or has prevented or attempted to prevent the employee from taking parental leave. The complaint must, if reasonably practicable, be presented within three months of the matter complained of.

Question 39

Is it fair to dismiss an employee for a reason related to parental leave?

Answer 39

s99(3)(c) ERA 1996 provides that, regardless of length of service, the employee will be automatically unfairly dismissed if the reason for the dismissal related to parental leave. s47C(2)(c) ERA 1996 provides protection against detriment for reasons related to parental leave.

In South Central Trains Ltd v Rodway [2004] the EAT held that an employee who was disciplined for taking one day off work to care for his son had not been subjected to a detriment for a reason related to parental leave. He did not have the right to take parental leave one day at a time (it has to be taken in weekly blocks).

Question 40

When is an employee entitled to take time of to take care of dependants?

Answer 40

s57A ERA 1996 entitles an employee to take a reasonable amount of unpaid time off for family emergencies, for example:

1. to provide assistance when a dependant falls ill, gives birth or is injured or assaulted;
2. to arrange for the provision of care for a dependant who is ill or injured;
3. in consequence of the death of a dependant;
4. because of the unexpected disruption or termination of arrangements for the care of a dependant;
5. to deal with an incident involving the child of the employee, which occurs unexpectedly in a period when an educational establishment is responsible for the child.

Question 41

Who is a dependent for the purposes of taking time off to care for dependents?

Answer 41

A dependant is defined as the employee’s wife, husband, child, parent or someone who lives in the same house as the employee but who is not an employee, tenant, lodger or boarder of the employee.

It also includes any person who reasonably relies on the employee:

1. for assistance if that person falls ill, is injured or assaulted; or
2. to make arrangements for the provision of care in the event of illness or injury.

The employee must inform their employer of the reason for their absence as soon as reasonably practicable and state, wherever possible, how long they expect to be absent.

Question 42

What can an employee do if they believe their employer has unreasonably refused to permit them time of to care for dependents?

Answer 42

s57B ERA 1996 entitles an employee to complain to an ET if the employer has unreasonably refused to permit them to take time off to care for dependants. The complaint must, if reasonably practicable, be presented within three months of the refusal.

The first decision of the EAT on time off to care for dependants was made in Qua v John Ford Morrison Solicitors [2003], a case brought by a single mother, who worked as a legal secretary in a “family-friendly” firm of mainly female solicitors. She was away from work for 17 days between January and October 2000 to look after her four-year-old son, who had medical problems. On two days she was away for only an hour or two and on another day she was away for five hours. Most of the time, she was absent for the whole day and on five occasions she was away for two or more days. She claimed that she had been automatically unfairly dismissed under s99 ERA 1996 because the reason for the dismissal was that she took, or sought to take, time off for a dependant under s57A ERA 1996.

Her complaint was dismissed by the EAT because she had not informed her employer of the reason for her absence as soon as reasonably practicable and had not advised her employer of how long she expected to be absent, both of which are required by s57A.

Question 43

What guidelines did the EAT issue is Forster v Cartwright Black related to time off to care for dependents?

Answer 43

1. The right is to reasonable time off to take action which is necessary.
2. Action which is necessary can be determined only on a case-by-case basis, but an ET will have to consider all the relevant circumstances such as the nature of the incident, the closeness of the employee to the dependant and whether alternative care arrangements were feasible.
3. It is not possible to specify a maximum period of time. It will be for the ET to determine what is reasonable on the facts and on whether, for example, previous time off had been taken.
4. The employee is not entitled to unlimited periods of time off, even if proper information has been given and a reasonable amount of time taken on each occasion. Such leave is for unforeseeable events and to make emergency care arrangements. These statutory provisions are not to permit employees to undertake the long-term care themselves, but to arrange for such care.
5. The inconvenience or disruption to an employer’s business is not a relevant factor to be taken into account by an ET. It is the sudden unforeseeable event – for example, a child falling ill – that triggers the protective provisions. Such an event can happen at a most inconvenient time for an employer, but the legislation has to be interpreted purposively.
6. The employee does not have to give daily updates to the employer, but should say how long they expect to be absent.

Question 44

How does an employee qualify to for the right to work flexibly?

Answer 44

Under s80F ERA 1996 a qualifying employee can request the right to work flexibly. This will involve requesting a change in hours, times and/or place of work.

A qualifying employee is a person who has worked for their employer for at least 26 weeks before making the request. The request must be made in writing, specifying:

1. that it is an application for flexible working;
2. the change applied for and the date on which it is proposed the change should become effective; and
3. what effect, if any, the employee thinks making the change applied for would have on their employer and how, in their opinion, any such effect might be dealt with.

Question 45

What must an employer do when receiving a request to work flexibily?

Answer 45

Upon receipt of the request, the employer, under s80G ERA 1996, is required to deal with the application in a reasonable manner and notify the employee of their decision within three months beginning with the date the application is made (or such longer time as the parties might agree).

ACAS has produced a Code of Practice and Guidance on how to deal with requests.

Question 46

Can an employer refuse a request to work flexibly?

Answer 46

An employer must have a statutory reason for refusing the request. The reasons are set out in s80G ERA 1996:

1. the burden of additional costs;
2. detrimental effect on ability to meet customer demand;
3. inability to reorganise work among existing staff;
4. inability to recruit additional staff;
5. detrimental impact on quality;
6. detrimental impact on performance;
7. insufficiency of work during the periods the employee proposes to work;
8. planned structural changes.

Question 47

What must the employer do if they accept the request to work flwxibly?

Answer 47

An employer who agrees to the flexible working arrangement must provide their employee with a written note of the contract variation and the date from which it is effective. Once varied, the contractual change is permanent unless otherwise agreed and specified.

Question 48

What can an employee do if the employer refuses a request to work flexibly?

Answer 48

If the request for flexible working is refused by the employer, the employee may be able to pursue a claim in the ET. Under s80H ERA 1996, an employee who makes an application under s80F may present a complaint either that:

1. their employer has failed in relation to the application to comply with s80G; or
2. a decision by their employer to reject the application was based on incorrect facts.

If the complaint is well founded, the tribunal can issue a declaration, recommend reconsideration of the decision, and/or award compensation of up to eight weeks’ gross pay (capped at £538 per week).