Last reviewed 4 January 2021
Working parents have a number of rights while in employment and it is crucial that all employers are aware of them. Ben McCarthy, lead researcher and employment law writer at Croner-i, outlines this in more detail.
It is likely that many employers will see their employees requesting time off for family-related situations and how they respond to this can be crucial in maintaining a successful employment relationship. This stretches beyond simply having a baby to ongoing time-off that is associated with the raising, and care, of children. Not only can poor management of this situation result in potentially costly tribunal claims, such as discrimination, but it can also lead to staff leaving the company and put off potential employees from even joining.
All pregnant employees have the right to take up to 52 weeks' maternity leave, regardless of their length of service. This type of leave is made up of ordinary and additional leave, each period lasting 26 weeks. They will also qualify for up to 39 weeks' statutory maternity pay if they have worked for a company for a minimum of 26 weeks before the end of the 15th week before the birth and follow correct notification procedures. During a period of maternity leave, the employment contract continues as normal, meaning that the individual is still classed as working for the company. Employees are free to choose how much time they take as leave and this usually depends upon their personal circumstances. At the end of an ordinary period of leave, they have the right to return to the same role they conducted previously. If they go into additional leave, they should also be permitted to return to the same role unless this is not feasible, in which case they should go into a new role with no less favourable terms and conditions.
Adoption leave is essentially the same as maternity leave. However, where a couple adopts a child jointly, only one of them can take adoption leave. The couple can choose which parent takes leave; the other parent may be able to take paternity leave, or parental leave, or shared parental leave.
Employees have the right to take up to one or two week’s paternity leave upon the birth or adoption of a child. This leave needs to be taken within 56 days of the birth or adoption. They will also be entitled to receive paternity pay if they have worked for a company for at least 26 weeks before the end of the 15th week before the birth and follow correct notification procedures. To qualify for paternity leave, employees need to be the father of the child, the husband or partner of the child’s mother, the child’s adopter or the intended parent if having the baby through a surrogacy arrangement.
Shared parental leave
Shared parental leave (SPL) was introduced in 2015 to give families more flexibility about how leave is taken following a child's birth or adoption. Employees who qualify have a right to convert a period of leave and pay, such as maternity or adoption leave, into a period of shared parental leave and pay that can be taken by either parent or the mother's spouse or partner. The amount of pay and leave available is worked out as follows.
The period of shared parental leave available is calculated by deducting the number of weeks' maternity/adoption leave taken, or which will be taken, from 52.
The period of shared parental pay available is calculated by deducting the number of weeks' statutory pay or maternity allowance leave the mother/adopter has received, or will receive, from 39.
For example, if a woman on maternity leave, receiving SMP, committed to bringing her leave to an end after 26 weeks, the remaining 26 weeks of maternity leave could be converted into SPL and the remaining 13 weeks of maternity pay could be converted into shared parental pay. The shared parental leave and pay could then be divided between the parents as they wished, if both parents qualified.
Parental leave provides working parents the right to take up to 18 weeks' unpaid parental leave in total for the purposes of caring for a child. The right to take leave applies in relation to each of the employee's children, including twins or other multiple births. What amounts to "caring for a child" is construed quite widely and could include simply spending more time with the child or visiting other family members. Under the default scheme, a maximum of four weeks' leave per child can be taken during a particular year and the leave can only be taken in blocks of a week or multiples of a week unless it is required to care for a child who qualifies as disabled.
Time off for dependants
All employees have the right to take a reasonable period of unpaid time off for dependants in the event of an emergency, which includes school closures in light of the coronavirus (Covid-19) pandemic. A dependant includes children under the age of 18. For the employee to be entitled to time off work, the circumstances must be unforeseen; a pre-arranged hospital appointment will usually not suffice for this type of leave. The amount of time that must be permitted will vary according to particular circumstances. The Department for Business, Energy and Industrial Strategy (BEIS) advises that this should not usually be more than two days but, again, it will depend on the situation.
Parental bereavement leave
Since 6 April 2020, parents have the right to take a period of leave in order to deal with the loss of a child under the age of 18 or a stillbirth after 24 weeks. If they have worked for the company for at least 26 weeks, they are also entitled to statutory parental bereavement pay. Employees are able to take these weeks either as one single block of leave, one single block of two weeks’ leave, or two separate blocks of one week of leave. They have 56 weeks following the death of their child in which to take this leave. Those eligible are:
those with court orders providing daily care responsibilities
foster parents (although it may not include emergency foster care)
The future – neonatal leave
In March 2020 the Government confirmed that it intends to introduce the right to neonatal leave and pay for situations when babies need to stay in hospital following their birth. This will allow maternity and paternity leave to be extended in order to provide more time off to parents in this situation. For every week that a baby must stay in hospital after their birth because they are not well enough to be discharged, parents can add an extra week of leave onto maternity and paternity leave, to a maximum of 12 weeks. This will only apply where the baby must remain in hospital for more than one week and associated pay will come directly from the Government. It is currently unknown when this will come into force.
While family leave can be costly for employers, they should remember that there is no legal obligation on them to go further than the statutory requirements. However, they need to make sure that they are adhering to these requirements.
Seek professional advice
For professional advice on dealing with any HR matters, speak to a qualified consultant on 0844 561 8149.