Introduces maternity and paternity rights, shared parental leave, and adoption rights in the UK
These Q&As should be read in conjunction with our case law on family-friendly rights.
In addition to pregnancy and maternity rights for biological mothers, there are a number of other rights for parents at work. One of the most recently introduced is parental bereavement leave, which came into force in April 2020. This entitles parents who lose a child under 18 or who suffer a stillbirth after 24 weeks of pregnancy the right to take two weeks’ leave, paid at the statutory rate, if they’re an employee. Workers are entitled to parental bereavement pay.
Shared parental leave (SPL), which allows parents to share statutory leave and pay following the birth or adoption of a child, was introduced in 2015. SPL is separate from the right to unpaid parental leave, and does not replace the maternity/paternity/adoption leave and pay regimes. It is available to birth parents, to parents adopting and to those in a surrogacy arrangement.
For more on shared parental leave and pay, see our maternity, paternity, shared parental and adoption leave and pay Q&As.
Parents also have the right to take up to 18 weeks’ unpaid parental leave up to their child’s 18th birthday, introduced in 1999 along with right to time off to care for dependants.
These are statutory rights. Some employers may choose to incorporate these rights into policies and may also offer some of the unpaid leave on a paid basis. Any policy or contractual arrangements must not undercut statutory rights - they can only mirror or enhance them.
Brexit: Although the right to unpaid parental and dependant leave originated in the EU under the 1996 Parental Leave Directive, it was supported by the government and incorporated into UK law in 1999. Changing family-friendly policies post-Brexit is unlikely as it will not be popular with the electorate and may have implications for the UK’s trade arrangements with the EU.
For more on post-Brexit arrangements, visit our Brexit hub.
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Parental bereavement leave and pay
The Parental Bereavement (Leave and Pay) Act 2018 was introduced in 2020. It gives parents who are employees the right to two weeks’ paid leave following the death of a child or a stillbirth. Parents who are workers may qualify for statutory parental pay but not the leave.
Both employees and workers qualify for statutory parental pay, paid at the statutory rate or 90% of their earnings, whichever is lower, if:
- their child dies under the age of 18 or is stillborn after 24 weeks of pregnancy
- they have worked for their employer for at least 26 weeks
- they earn at least £120
The right applies to:
- biological parents
- adoptive parents
- adults living with the child, with responsibility for them at least four weeks before they died
- intended parents through surrogacy
- partners of a child’s parent who are living with the child and the child’s parent in an enduring relationship.
Employees are entitled to two weeks’ statutory parental bereavement leave from the day they start work. The leave can be taken as single weeks or together and is available for 56 weeks after a child’s death. Employees must give their employees notice that they intend to take parental bereavement leave.
For more information on this right, see Acas guidance on Parental bereavement leave and pay when a child dies.
Unpaid parental leave
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 allow an employee who qualifies to take unpaid parental leave.
The purpose of unpaid parental leave is to care for a child. Rights and requirements in connection with taking parental leave are set out in the Maternity and Parental Leave Regulations 1999. The Employment Rights Act 1996 deals with claims in breach of those rights.
The right to take unpaid parental leave applies to employees who:
- are working full-time or part-time
- have one year's qualifying service
- have, or expect to have, parental responsibility for the care of a child under 18 years of age.
Prior to 5 April 2015, unpaid parental leave applied for a child under 5 years, or under 18 years if the child was disabled. Now the 18 years age limit applies to all children.
- The leave applies equally to adoptive parents and biological parents who have care of the child and applies to each child for whom the employee has parental responsibility. For example, each parent of triplets is theoretically entitled to 54 weeks per child 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.
Employees are entitled to take:
- up to 18 weeks' unpaid leave before the child's 18th birthday
- no more than four weeks’ parental leave in any one year
- in blocks of one week or multiples of a week (although the employer and employee can agree a different arrangement) unless the child is disabled.
Parents must give 21 days’ notice of their intention to take leave, including when they would like the leave to begin and end.
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, provided the provisions are at least as favourable as the principles set out above. Employers may choose to request details of how much unpaid parental leave an employee has taken to date (where relevant) during the recruitment process, as the leave is per parent and not per employer.
An employee who wishes to take parental leave is required to give 21 days’ notice of their proposed leave date and the leave’s duration and, where the employer requests them to do so, evidence of their parental or expected parental responsibility. An employee who has been asked to supply this information should provide such evidence as is reasonable in the circumstances, so employers should avoid being too intrusive. Where the leave is being taken at the date of birth or adoption placement, the notice must specify the expected date of the birth or placement for adoption and give 21 days’ notice in advance of that date.
Right to return to the same job
Any employee who takes parental leave for a period of four weeks or less has the right to return to the same job, on the same terms and conditions, unless the leave is added to the end of additional maternity leave.
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). The EAT 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.
Even though this case was about a woman returning from her ordinary maternity leave, the same principle would apply; the employee can be enabled to return to the same job even if the arrangements for carrying out that job are not exactly the same as before they took the leave. The employer concerned, therefore, succeeded on most of the issues in the case. However, the employee was successful on one issue, namely that loss of the opportunity to influence the choice of class to be taught amounted to a detriment.
Postponing unpaid parental leave
An employer can postpone parental leave if an employee’s absence would unduly disrupt the 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, leave taken 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 of parental leave.
An employee asks to take two weeks’ unpaid parental leave starting from 9 December from a garden centre cafe that 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 a seasonal 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.
Unpaid time off for dependants
Since 1999, under s57A(1) of the Employment Rights Act 1996, an employer must permit an employee to take a reasonable amount of time off during working hours to take actions 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. The legal right is to a reasonable amount of unpaid time off to deal with emergencies. There is no set period of days or weeks in the definition and each situation should be judged on its circumstances, although the statutory circumstances in which the need arises must apply.
In Forster v Cartwright Black (2004), the EAT held that the provisions do not introduce a right to on-going compassionate leave as a result of bereavement. An employee had taken 12 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 she did not have enough continuous service to claim 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) organising a funeral, attending a funeral, registering a death and applying for probate. However, there is no legal right to compassionate leave as a result of bereavement (except for a child under 18 or stillbirth after 24 weeks – see Parental bereavement leave and pay).
Many employers will already have policies that take account of the need to take leave to deal with a close bereavement.
The Employment Rights Act 1996 deals with claims in breach of unpaid parental leave rights. It also sets out the rights and claims in relation to unpaid time off for dependants (sometimes also called dependant care leave).
The following claims may be made where the employer has allegedly infringed these rights.
- Detrimental treatment where 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. An employment tribunal may award compensation to an employee who suffers such a detriment (see s47C of the Employment Rights Act 1996, Leave for Family and Domestic Reasons).
- 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 (see s99 of The Employment Rights Act 1996, Leave for Family Reasons).
Time off for dependants:
- The right to claim detrimental treatment under s47C as for parental rights.
- The right to claim automatic unfair dismissal under s99 as for parental rights.
This category of automatic unfair dismissal does not require the employee to have any length of service (unlike ‘ordinary’ unfair dismissal claims where the qualifying period is two years)
For the detrimental treatment claims, the tribunal will:
- make a declaration that they were unreasonably refused permission
- award compensation which is just and equitable in the circumstances.
For the dismissal claims, the remedy will be as for ‘ordinary’ unfair dismissal claims.
In addition, there may be a sex discrimination claim or a disability 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 disability.
In the unreported case of Balch v Royal Mail (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 compensation 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).
Does time off to care for a dependant have to be an unexpected emergency?
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 whether the time off is necessary.
For example, in Royal Bank of Scotland Plc v Harrison (2009), 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'. The requirement was for the disruption to be unforeseen rather than unexpected. However the longer the employee has to try to make other arrangements the less likely it is that they will qualify for this type of leave.
Who is a 'dependant'?
For the purposes of this legislation, 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.
What information is an employer entitled to from an employee who needs time off to care for a dependant?
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.
Notify as soon as reasonably practical
Notify as soon as reasonably practical
Employees are entitled to take a reasonable amount of unpaid time off only if they tell their employer the reason for the absence as soon as it is reasonably practicable to do so. In Ellis v Ratcliff Palfinger Ltd (2014) 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 and asked 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 dismissed protection for time off for dependents did not kick in because the employee had not kept his employer informed about his absence. Whether it is reasonable for the employee to make contact with their employer depends on the employee's state and circumstances. In this case, the employee could have made more effort to make contact.
Disclosing reasons for absence
The case Truelove v Safeway Stores plc (2005) suggests that employers should not be overly demanding in the information they require before allowing 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 s 57B).
The employer argued that:
- he had not disclosed the reason for his absence, namely the disruption to the original arrangements and
- it did not have enough information to determine whether the right to time off applied.
The employee won on appeal to the EAT which held that there had been sufficient communication of his reasons for not being in work 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
The case Qua v John Ford Morrison Solicitors (2003) provides extensive guidance on dependant leave. Here a legal secretary was dismissed after 10 months because of 20 days’ absence arising out of the medical problems of her four-year-old son. The EAT specified the following questions for 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 off to deal with one of the situations listed in the legislation?
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?
The yardstick of what is a reasonable amount of time off will be from the viewpoint of the employee and the situation they find themselves in, not from the employer’s perspective. In this case the employer took the view that the employee had ‘overstepped the mark’ and taken too much leave in the circumstances, which was not the correct approach.
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Answers to commonly asked legal questions relating to maternity, paternity, shared parental and adoption leave and pay