Legislation overview

Shared parental leave (SPL) allows parents to share statutory leave and pay. The coalition Liberal Democrat-Conservative Government introduced SPL for parents of children due on or after 5 April 2015. It was brought into effect by various legislation (a list of which is given at the end of these Q&As). SPL is separate from the right to unpaid parental leave, and has not replaced the current maternity leave and pay regime.

What SPL did replace was the additional paternity leave regime, which enabled eligible employees to care for their child after the mother had returned to work for between two and 26 weeks, starting 20 weeks after the child’s birth.

Similar SPL rights apply to adoptions. The intended parents in a surrogacy arrangement are also entitled to take advantage of shared parental leave. These rights also apply to same-sex partnerships, so any references to ‘fathers’ should be taken as including women in same-sex partnerships..

Unpaid parental leave generally refers to the current right of up to 18 weeks’ (formerly 13 weeks) of extra unpaid leave, which is in addition to the primary paid leave available to parents.

For general information on shared parental leave and pay, see our Maternity, paternity, shared parental and adoption leave and pay Q&As.

Answer:

Unpaid parental leave applies to:

  • male or female employees and
  • full-time or part-time employees
  • who have one year's qualifying service
  • and have responsibility for the care of a child under 18 years of age (this was previously under 5 years before 5 April 2015).

Employers should note that different age limits previously applied for parents of disabled children but now parents of all children under 18 years are entitled to the unpaid leave  (see the related Q&A Are there any exceptions to the parental leave provisions for parents with disabled children?). 

Answer:

In addition to the right to take maternity, paternity and adoption leave (see our Maternity, paternity and adoption leave and pay Q&As), an employer must offer unpaid leave which complies with the following principles:

  • Maximum overall leave - employees are entitled to take up to 18 weeks' unpaid leave.
  • The leave must be taken before the child's eighteenth birthday.
  • The leave applies equally to adoptive parents and biological parents who have care of the child.
  • The leave is in respect of each child for whom the employee has parental responsibility. For example, parents of triplets are theoretically entitled to 54 weeks in addition to their normal maternity and paternity entitlements (if they can afford to take the time off without payment).
  • The leave can be for any purpose connected with the care of the child.
  • No more than four weeks parental leave can be taken in any one year.
  • In default of any agreement to the contrary, parental leave may only be taken in blocks of one week or multiples of a week unless the child is disabled.
  • 21 days notice must be given of the intention to take leave and of when the leave begins and ends.

Note that employers can conclude collective or workforce agreements which can then be incorporated into an employee's contract of employment setting out the provisions governing parental leave, as long as the provisions are at least as favourable as the principles set out above.

See also the related Q&A Are there any exceptions to the parental leave provisions for parents with disabled children?.

Answer:

Before 5 April 2015 the parents of disabled children had more generous unpaid parental leave rights because they had an extended period in which to take parental leave, up to the date of the child's eighteenth birthday. Now all parents have the right to take their leave up to the child’s eighteenth birthday.

Parents of disabled children do have additional rights because they are not required to take leave in blocks of one week.

Disability is defined as being entitled to disability living allowance.

See also the related Q&A What must an employer offer by way of parental leave?.

Answer:

Yes, any employee who takes parental leave for a period of four weeks or less, unless the leave is added to the end of additional maternity leave, has the right to return to the same job, on the same terms and conditions.

For employees who take a longer period of parental leave, or whose leave is added to the end of additional maternity leave, the right is to return to the job they left before their leave commenced, unless it is not reasonably practicable to allow this. In such a case, the employee would have the right to return to a job which was suitable and appropriate in the circumstances.

The Employment Appeal Tribunal (EAT) had to consider what the right to return means in Blundell v The Governing Body of St Andrew's Catholic Primary School and another [2007] IRLR 652, EAT. It upheld a tribunal decision that returning to a teaching job at a primary school was the same job even though it was not teaching the same subject in the same way as before the maternity leave had started. The employer concerned therefore won the major part of the case. However, the employee won on one issue, namely that loss of the opportunity to influence the choice of class to be taught amounted to a detriment.

Answer:

Yes, an employer can postpone parental leave if an employee’s absence would unduly disrupt the employer's business. Employers should not use this provision simply because the parental leave may be rather inconvenient for them. It is intended for employee absences which would harm the business, for example when work is at a seasonal peak, or perhaps where numerous employees apply for parental leave at the same time, or if the employee’s role is such that their absence at a particular time would cause undue harm to the employer's business.

The following points should be noted:

  • If an employee applies to take unpaid parental leave immediately after their child's birth (or adoption) then the employer cannot postpone this leave.
  • Parental leave taken at a later time can be postponed.
  • Postponement should be for no longer than six months after the time when the employee asked for parental leave to start.
  • An employer should discuss the postponement of the leave with the employee and provide notice of the postponement in writing.
  • Notice of the postponement should be no later than seven days after the employee made the request for parental leave.
  • The notice of the postponement should state the reason for the postponement and set out alternative dates for the same length period of parental leave.

Example

An employee asks to take two weeks unpaid parental leave starting from 9 December from a garden centre cafe which she manages, so that she can spend time with her thirteen-year old son who has been doing badly at school. There are only two other more junior members of staff at the cafe. December is an especially busy time as there is an annual Christmas promotion in the cafe to support visitors doing their Christmas shopping in the garden centre. The employer considers that the business would be unduly disrupted if the manager took leave at the time she has chosen. The only way the employer could accommodate the request would be to close the cafe early each day. As the work is at a seasonal peak, the employer may be justified in asking to postpone the leave as it would unduly harm the business.

Answer:

A variety of employment protection is in place for employees who qualify to take parental leave or time off for dependants, including claims for the following:

Parental leave

  • Detrimental treatment, if this arises out of exercising the right to take parental leave. Detrimental treatment may take many forms, for instance, inferior terms and conditions or refusal to consider an employee for promotion. The employment tribunal may award compensation to an employee who suffers such a detriment.
  • Automatically unfair dismissal, if an employee is dismissed for the reason that they took or sought to take parental leave. This includes a redundancy situation where the employee was selected for a reason connected with parental leave.

Time off for dependants

  • A declaration they were unreasonably refused permission.
  • Compensation which is just and equitable.
  • If they are dismissed for this reason, they may also claim automatically unfair dismissal.

(See sections 57A and 57B of the Employment Rights Act 1996).

In addition there may be a sex discrimination claim if the employee can show that the refusal to allow them to take the time off amounted to less favourable treatment on the grounds of sex or in other cases disability discrimination.

In the unreported case of Balch v Royal Mail (unreported, ET 2011) a female employee working with the Royal Mail on a six-month trial period had an asthmatic son and needed unpaid time off seven times during her initial six months. She had a performance review which mentioned her poor attendance, but she did not see this review until her six-month assessment meeting, after which she was dismissed and given one week's notice. She was awarded £8,700 as automatically unfair dismissal for asserting a statutory right (in this case to a reasonable amount of unpaid time off to deal with emergencies involving a dependant). However, she may also have been able to claim:

  • under the Equality Act 2010 for discrimination because of an association with a disabled person, and
  • a breach of the Employment Rights Act 1996 (time off for dependants provisions).

Answer:

Since 1999, an employer must permit an employee to take a reasonable time off during working hours to take action necessary in connection with one or more of the following:

  • when a dependant falls ill
  • when a dependant is injured or assaulted, or gives birth
  • to make longer-term arrangements for a dependant who is ill or injured
  • the death of a dependant
  • an unexpected incident involving a child of the employee when the child is at an educational establishment
  • when there is an unexpected disruption or breakdown in care arrangements for a dependant.

Note that illness for these purposes includes mental illness. However the legal right is to a reasonable amount of unpaid time off to deal with emergencies.

In Forster v Cartwright Black [2004] IRLR 781, the Employment Appeals Tribunal (EAT) held that the provisions do not introduce a right to on-going compassionate leave as a result of bereavement. An employee had taken twelve days paid bereavement leave when her father died. When her mother died four months later she took five days’ bereavement leave and when this leave expired her doctor certified two weeks’ sick leave as ‘bereavement reaction’. This was followed by a further two weeks sick leave certified by her doctor for the same reason.

Following receipt of the second sicknote, the employee was dismissed because of her period of absence following her mother’s death and her general absence record. As there was not enough continuous service for a claim of ordinary unfair dismissal she claimed automatic unfair dismissal due to time off 'in consequence of a dependant’s death'.

The EAT held that necessary actions 'in consequence of the death of a dependant' covered by the legislation include (but are not limited to) making arrangements such as funeral organisation, funeral attendance, registering death and applying for probate. However there is no legal right to compassionate leave as a result of bereavement.

Employers should ideally have their own in-house procedures for dealing with such applications for leave following the death of a dependant and may consider introducing a prescribed number of days as a discretionary benefit to be authorised by managers.

Answer:

Although the time off for dependants provisions are designed to deal with unusual disruptions such as illness or a break down in care arrangements, the need for time off does not have to be a sudden and unexpected emergency.

The key issue is for employers and employees to behave sensibly and consider if the time off is necessary. For example in Royal Bank of Scotland Plc v Harrison [2009] IRLR 28, EAT the employee’s childminder unexpectedly told her she could not cover a work day. The employee was given two weeks notice of this. The employee could not make other arrangements and asked her employer for the day off and was refused. The employee took the day off anyway, and was disciplined. The Employment Appeal Tribunal confirmed that she was entitled to the time off to deal with the unexpected disruption to care for dependants. The employee was still protected even though she had two weeks' notice; there did not have to be a 'sudden and unexpected emergency'.

For more guidance on the way in which time off for dependants operates see the related Q&A Who is a 'dependant' for the purposes of the time off for dependants provisions?.

Answer:

A dependant is quite narrowly 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.

The definition is extended to any person who reasonably relies on the employee for assistance to make care arrangements where that person has fallen ill, or been injured or assaulted.

Answer:

The employee should, as soon as reasonably practicable, inform their employer of the reason for the absence and for how long it is expected to continue.

It may in some circumstances be reasonable for the employee to inform the employer on their return to work where it was not practicable to make contact earlier.

Case law examples

Numerous cases are now being reported on time off for dependents and some useful guidance concerning the information to be given on each occasion of absence comes from the following cases.

Notify as soon as reasonably practical

Employees are entitled to take a reasonable amount on unpaid time off only if they tell the employer the reason for the absence as soon as it is reasonably practicable to do so. In Ellis v Ratcliff Palfinger Ltd (unreported, UKEAT/0438 17 September 2014, EAT) an employee had previous attendance issues and as a result was under a final warning. All employees’ contracts required absences to be notified within 30 minutes of the normal working day. This employee’s partner went into labour. He took her to hospital several times on the first day without telling his employer where he was, although his father telephoned for him that afternoon. The next day he again attended hospital when the baby arrived. He didn't telephone the employer at all that day to explain. Subsequently he said that the battery on his mobile phone had died and he couldn't remember the employer’s phone number. He was contacted by his employer on the third day who asked him to explain his absence urgently and he left a voicemail message explaining that he would not be in work the next day. He was dismissed and his automatically unfair dismissal case failed because he hadn't taken the necessary steps to keep his employer informed of his whereabouts. The automatically unfairly dismissal protection for time off for dependents did not kick in because the employee had not kept his employer informed about his absence. The reasonable practicability of making contact depends on the employee's state and condition and here the employee could have made more effort to make contact.

Disclosing reasons for absence

Truelove v Safeway Stores plc [2005], ICR 589, EAT suggests that employers should not be overly demanding in the information they require before granting a request for time off for dependants. The employee only has to communicate enough to put an understanding in the employer's mind that something has happened to cause the breakdown of the usual (in this case childcare) arrangements and to make it necessary, urgently, for the employee to be absent from work.

An employee of Safeway Stores indicated that he may need to leave work on the next day because his partner had a meeting. Before he left work that day he confirmed that there was no one to look after his child the next day. He did not mention that some alternative arrangements he had made had fallen through. He did not attend work and was subsequently disciplined.

The employee complained to the employment tribunal that he had been unreasonably refused time off during working hours to deal with the unexpected disruption of arrangements for the care of a dependent. (See Employment Rights Act 1996 sections 57A and 57B).

Safeway Stores argued that:

  • he had not disclosed the reason for his absence, namely the disruption to the original arrangements and
  • they did not have enough information to determine whether the right for time off applied.

The employee won on appeal to the Employment Appeal Tribunal which held that there had been sufficient communication to the employers of why he was not going to be there the next day. The reasonableness of an employee’s request should involve consideration of how often the problem had happened before, whether or not there was another way of solving the problem and the business needs of the employer.

Approach to be taken

Qua v John Ford Morrison Solicitors [2003] ICR 482, EAT provides more extensive guidance on dependant leave. In this case a legal secretary was dismissed after ten months because of 20 days absence arising out of medical problems for her four-year old son. The Employment Appeal Tribunal specified the following questions for the tribunals to consider in approaching these claims:

  • Did the employee take time off during working hours?
  • If so, on how many occasions and when?
  • On each of those occasions, did the employee inform the employer of the reason for the absence?
  • Did the employee inform the employer how long they expected to be absent?
  • If not, were the circumstances such that the employee could not inform the employer until after they returned to work?
  • Did the employee seek to take time of to deal with one of the situations listed above in the question 'What must an employer offer by way of time off...?'

If the employee can answer 'yes' to all of the above questions, then right to time off arises. It is then necessary to assess:

  • Was the amount of time taken off reasonable in the circumstances?
  • Was the principal reason for the dismissal taking that time off work?

If so, a claim of automatically unfair dismissal arises.

Parental bereavement bill

Employees have the right to take a ‘reasonable’ amount of unpaid time off to deal with an emergency involving a dependant, including coping with a child’s death. Organisations may offer employees compassionate leave in these circumstances, paid or unpaid.

In October 2017, the government confirmed its backing for a private members’ bill, currently progressing through Parliament, which will give employees who lose a child under the age of 18 the right to two weeks’ leave. Under the Parental Bereavement (Leave and Pay) Bill, employees with 26 weeks’ service will also be entitled to receive statutory pay during the fortnight. The government is aiming for the new law to be in force in 2020.

Brexit

In a referendum on 23 June 2016 the UK voted to leave the EU. Following this vote, it is not yet clear what, if any, changes will be made to employment law. Any EU-derived law will not disappear overnight and if any laws are altered this will depend on the withdrawal terms and will be a lengthy process. The process for leaving requires an Act of Parliament to trigger a ‘withdrawal notice’ (Article 50). After that there is a maximum two year period in which to negotiate the terms of any withdrawal. The main options for the UK are to join the European Economic Area (EEA) like Norway, or negotiate bilateral agreements with the EU, like Switzerland. In both these scenarios the UK would still have to comply with EU social and employment law.

The majority of family-friendly rights originate in the UK, so it is unlikely that these rights would be changed. Many family friendly rights have been supported by both the current and previous coalition governments. Changing family-friendly policies is also likely to be unpopular with the electorate.

For information on what Brexit will possibly mean for general employment law read the blog by our Public Policy Advisor (Employer Relations).

We have also set up a resource hub on our website where relevant resources and details of our ‘Brexit’ activities will be published.

Explore our related content

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