Family/Friendly Rights Flashcards
Time of for antenatal care
All pregnant employees are entitled to time off for antenatal care under S55 ERA 1996.
Husband/partner/same-sex partner/father of the child have the right to unpaid leave to attend 2 antenatal appointments, S57 ERA 1996.
Employee is allowed to take a max of 6.5 hours on each occasion.
Employer can request a signed declaration from the employee:
a) That the employee has a qualifying relationship with the pregnant woman or her expected child.
b) That the purpose of taking time off is to attend an antenatal appointment.
c) That the appointment is made on the advice of a registered nurse.
d) Date and time of the appointment.
If time off is unreasonably refused, the employee may claim to a tribunal within 3 months, beginning with the day of the appointment, S57 ERA 1996.
This right is extended to agency workers who meet the requirements on AWR 2010.
Maternity Leave
No matter how long the pregnant employee has worked for her employer, she is entitled to a total of 52 weeks’ maternity leave.
Duration of Ordinary maternity leave (OML) and Additional Maternity Leave (AML) is defined in Reg 7 Maternity and Parental Leave Regulations 1999.
Commencement of maternity leave periods are defined in Reg 6 MPL 1999.
Employee is required to give the employer 28 days’ notice of her intention to vary the date she takes OML.
Compulsory maternity leave (Reg 8 MPL Regulations 1999), an employer may not permit an employee to work for the first two weeks after childbirth.
Criminal offence to allow a woman to work during this period and result in a £500 fine.
During both OML and AML the employee is entitled to the benefit of the terms and conditions of employment which would have applied if she were not absent.
Rights in relation to sickness insurance or holiday entitlement continue.
Rights relating to seniority are suspended, not lost. Halfpenny v I G E Medical Systems.
A woman can work up to 10 keeping in touch days during her maternity leave.
A woman is required, no later than the end of the 15th week before the EWC to inform employer of:
a) Her pregnancy
b) Her EWC
c) The date on which she wishes to start her leave
The return to work after maternity/parental leave is governed by Reg 18 MPL Regulations 1999.
Entitled to return to her former job, S71(4(C) ERA 1996 and Regs 18(1) and 18A MPL Regulations 1999
Under ss164-171 Social Security Contributions and Benefits Act 1992, statutory maternity pay (SMP) is payable to any pregnant employee who:
a) Has continuously been employed for a period of at least 26 weeks by the 15th week before the EWC.
b) Has normal earnings that are no less than the lower earnings limit for national insurance during an 8-week period before the 15th week before the EWC.
c) Has given 28 days’ notice of her intention to start claiming SMP or if that is not reasonably practicable such notice as is reasonably practicable.
d) Has provided a certificate confirming that she is pregnant and stating the EWC.
SMP is payable for 39 weeks. A woman can decide exactly when to commence her maternity pay. SMP is paid weekly, starting on a Sunday.
SMP is now paid at the rate of 90% of the woman’s average weekly earnings for the first 6 weeks and £156.66 or 90% of the woman’s average weekly earnings (whichever is the lowest) for the next 33 weeks.
Most employers can only recover 92% of SMP. Small employers can recover 100% of SMP.
SMP cannot be paid at the same time as statutory sick pay. If a pregnant woman is in receipt of statutory sick pay this can continue to be paid beyond the 4th week before her EWC as long as her illness is not related to her pregnancy.
Employees ineligible to claim SMP may claim maternity allowance from the state for 39 weeks which is paid at the flat rate of SMP.
Adoption appointments, leave and pay
Adoption appointments, leave and pay Rights are contained in S57 ERA 1996.
Paternity and Adoption Leave Regulations 2002, introduced statutory rights for employees who adopt a child to take time off following the adoption.
Ordinary paternity leave and pay
Right to ordinary paternity leave (OPL) is found in PAL Regulations 2002.
Statutory paternity pay is provided for by Part XIIZA Social Security Contributions and Benefits Act 1992.
Employers are reimbursed for SPP payments in the same way as for SMP
Shared parental leave and pay
Shared parental leave and pay provisions are contained in the Shared Parental Leave Regulations 2014.
SPL is available to those who satisfy the continuity of employment test and whose partner satisfies the employment and earnings test (Regs 35 & 36).
Shared parental leave pay, to be entitled to SPLP the employee must qualify for Statutory Parental Leave and either:
a) Qualify for SMP or SAP; or
b) Qualify for statutory paternity pay and have a partner who qualifies for SMP, MA or SAP.
The employee must provide the employer with notice of at least 8 weeks before they intend to claim SPLP, stating:
a) Maximum number of weeks they would be entitled to claim SPLP for;
b) How much SPLP they intend to claim;
c) How much SPLP their partner intends to claim;
d) The period or periods during which they intend to claim SPLP.
Parental leave Provisions are contained in MPL Regulations 1999.
a) 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.
b) Complaint must be made within 3 months of the matter complained of.
c) S99(3)(c) ERA 1996 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.
d) S47C(2)(c) ERA 1996 provides protected against detriment for reasons related to parental leave.
Time off to care for dependants
Governed by S57A ERA 1996.
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. Complaint must be presented within 3 months of refusal.
EAT issued the following guidelines on time off to care for dependants:
a) Right is to reasonable time off to take action which is necessary.
b) Action which is necessary can be determined only case-by-case, 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 dependent and whether alternative care arrangements were feasible.
c) It is not possible to specify a max period of time.
d) 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.
e) 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 that triggers the protective provisions.
f) The employee does not have to give daily updates to the employer, but should say how long they expect to be absent.
S99(1)(d) ERA 1996 provides that, regardless of length of service, the employee will be automatically unfairly dismissed if the reason for the dismissal is related to taking time off to care for dependants.
S47C(2)(d) ERA 1996 provides protection against detriment for reasons related to time off to care for a dependant.
Bereavement leave and pay
Parental Bereavement Leave Regulations 2020 apply in respect of children who die on or after April 2020.
The death of a child includes a still birth from 24 weeks of pregnancy.
The regulations apply to a wide range of people who might care for a child, including: parents, adopters, foster carers, guardians, partners of the parent etc.
No length of service required.
Qualifying employees are entitled to take a minimum of one week’s leave and max of two weeks’ leave.
Leave must be taken within 56 weeks of the child’s death.
Employee must give their employer notice of their intention to take parental bereavement leave, specifying:
a) The date of the child’s death;
b) The date they intend to start their leave;
c) Whether they intend to take one- or two-weeks’ leave.
Leave is to be taken within the first 56 days of the child’s death, the employee has to give notice before the first day of absence, or asap.
If the leave starts more than 56 days after the child died, the employee must give at least one weeks’ notice.
Leave that has not yet been started can be cancelled by giving notice by the day it is intended to start or one weeks’ notice.
Bereavement leave pay is provided for by Part XIIZD Social Security Contributions and Benefits Act 1992 and the Statutory Parental Bereavement Pay (General) Regulations 2020.
Employee are entitled to be paid for the leave if they:
a. Have at least 26 weeks continuous employment ending by the week immediately before the week the child dies;
b. Earn at least the lower limit for national insurance contributions; and
c. Have given notice within 28 days of the first day of leave.
Flexible working provisions
All employees who have 26 weeks’ continuous employment have the right to request flexible working (S80F ERA 1996).
Application must be in writing and qualifying employees can only make one request in any 12-month period.
The Code of Practice states that the employee’s request must be in writing and state:
a. Date of the application;
b. The change requested;
c. When they would like the change to take effect;
d. The effect it might have on their employer and how long it might be dealt with;
e. That it is a statutory request;
f. Details of any previous request.
Decision must be communicated to the employee within 3-months of the request.
Employer can only refuse the request if one of the following grounds are met under S80G.
