Leave and Flexible Working for Parents and Carers

The Equality Act prevents “unfavourable treatment” because of pregnancy, pregnancy related illness and maternity leave. This can range from dismissing or making a woman redundant to adverse comments or exclusion from communications or social events during maternity leave. Including pregnancy related absences in “triggers” in absence policies or when selecting employees for redundancy is likely to be considered discrimination.

Where work is of a kind which could involve a special risk to a new or expectant mother or her baby, the employer is under a duty to carry out a risk assessment. In practical terms, it is likely to be necessary to carry out a risk assessment in most cases in order to understand whether there is a risk prompting the duty. Health and Safety Executive guidance suggests that likely risks are work-related stress, long working hours, lifting and carrying, excessive noise, handling chemicals, extremes of heat and cold, and movements and postures. Failing to carry out a risk assessment can amount to pregnancy or maternity discrimination.

There is no limit on the amount of time off for ante natal appointments: the right is to paid leave to attend any appointment for ante natal care that she has been advised to attend by a registered medical practitioner, midwife or nurse. Some pregnancies require more appointments than others so whilst the employer is at liberty to ask for proof of an appointment (except for a first appointment), time off to attend should not be refused.

Fathers (or those in a “qualifying relationship”) are now entitled to unpaid time off to attend up to two ante-natal appointments with the mother. On each occasion, the maximum amount of time off is 6½ hours.

A primary adopter is entitled to paid leave for up to 5 appointments, and his/her partner unpaid leave for up to 2 appointments. A maximum of 6½ hours can be taken for each appointment.

All employees (including those on fixed term or part time contracts), regardless of length of service, are entitled to up to 12 months maternity leave, made up of 6 months Ordinary Maternity Leave and 6 months Additional Maternity Leave. An employee can take less than 12 months leave, but should give at least 8 weeks’ notice of her intention to return. Entitlement to Statutory Maternity Pay is dependent on length of service, and being paid at least the lower earnings limit for National Insurance over the qualifying period.

An employee can choose the start date of her maternity leave from any time 11 weeks before her due date up to the week of her due date. Maternity leave will start automatically if the baby is premature or if she is absent with pregnancy related illness in the 4 weeks before her due date. She can change her mind about the start date but should give 28 days’ notice.

A woman has the right to return to the same job after Ordinary Maternity Leave. If leave lasts more than 6 months, she can be offered a suitable and appropriate alternative if it is not reasonably practicable for her to return to the same job. Maintaining arrangements made to cover maternity leave is unlikely to fall within this category. There are similar rights after Shared Parental Leave and Adoption Leave.

The risk assessment carried out in respect of new and expectant mothers should cover mothers who are breastfeeding after returning to work. Health and safety obligations require employers to give breastfeeding mothers facilities to rest and have adequate meal breaks. The HSE recommends having somewhere suitable to express and then store breastmilk. Failing to make adjustments around breastfeeding could amount to unlawful discrimination.

Employees on maternity leave continue to accrue holiday but cannot take holiday during maternity leave. If they have not been able to take their holiday because of maternity leave, it should be carried over to the next holiday year.

An employee can work up to 10 keeping in touch days (or KIT days) during maternity leave or 20 KIT days during Shared Parental Leave, without bringing leave to an end. These days are commonly used to facilitate attendance at staff meetings or allow the employee to attend training s/he would otherwise miss but can be used for any reason. KIT days should be agreed between both employer and employee: there is no right to work a KIT day and no requirement to do so.

Miscarriage before 24 weeks does not give any special right to leave or pay: it is treated as pregnancy related absence. Miscarriage or stillbirth after 24 weeks entitles the employee to maternity leave as if she had a live birth, which would start automatically. She can give notice to return to work, but must not do for at least 2 weeks.

Employees on maternity leave can be made redundant but doing so because of maternity leave is unlawful discrimination. Identifying a position as redundant because of maternity cover arrangements is likely to be considered discrimination. Employees on maternity leave have special rights to be offered suitable alternative employment if their substantive position is redundant.

The employer must pay Statutory Maternity Pay where an employee is eligible, but most or all of this can be recovered by way of deductions from PAYE due to HMRC.

Fathers or the spouse, partner or civil partner of the child’s mother, with at least 26 weeks’ service 14 weeks before the due date can take paternity leave. Spouses, partners and civil partners who are not the biological father are only entitled to leave if they have the main responsibility for bringing up the child (other than the child’s mother). Biological fathers are not entitled to leave if they do not have any responsibility for the child’s upbringing.

Eligible employees can take either one or two consecutive weeks leave at any time in the baby’s first 8 weeks (or before 8 weeks after the due date if s/he is born early). It cannot be taken after Shared Parental Leave. Statutory Paternity Pay is payable by the employer, but most or all of it can be recovered from HMRC.

Fathers and eligible partners can be entitled to Shared Parental Leave if the mother gives up her right to maternity leave. Leave can be taken at any time within the child’s first year. Mothers who have given up maternity leave can then share that leave with the father (or eligible partner) if they too are eligible. There are similar rights to return to the same job as after maternity leave and to take up to 20 KIT days.

Employees with 26 weeks service 15 weeks before the due date who have main responsibility (with the other parent) for care of the baby are eligible to take Shared Parental Leave. Where mothers are not themselves eligible because of short service, or they are self-employed or recently unemployed, eligible fathers and partners can still take leave if the mother curtails her entitlement to Statutory Maternity Leave or Maternity Allowance.

Shared Parental Leave need not be continuous, though an employer has the right to refuse requests for discontinuous periods of leave.

Shared Parental Leave can be taken in isolation by one partner, sequentially by both partners or at the same time.

An employer cannot refuse a request for a continuous period of Shared Parental Leave but can refuse discontinuous leave. It is unlawful to dismiss or subject an employee to a detriment because they have requested or taken Shared Parental Leave.

Parental Leave is a period of unpaid leave to which all parents are entitled within the first 18 years of each child’s life. They can take up to 18 weeks in total. They must have been continuously employed for at least a year and be responsible for the child’s upbringing, with the leave taken for the purpose of caring for the child. Under the default scheme, employers are entitled to give notice to postpone Parental Leave where business would be unduly disrupted, except when it is requested immediately after the birth. A minimum of 1 and maximum of 4 weeks’ per year can be taken under the default scheme, in multiples of a week.

An employee who is matched for adoption via an adoption agency, adopts from abroad under the relevant rules of that country, foster parents who adopt through the fostering for adoption scheme and parents of a child born to a surrogate mother may be eligible for adoption leave. Couples will need to nominate who is the “adopter”, who will be entitled to primary leave akin to maternity leave. The other partner will be entitled to paternity leave. There are similar rights to statutory pay and provisions for returning to work and working KIT days. Adoption leave can start on the date the child is placed or up to 14 days before (except in surrogacy cases, when leave will start on the day the child is born, or the day after if the employee is at work).

The primary adopter can give notice to end adoption leave and take Shared Parental Leave, much in the same way as Shared Parental Leave works after the birth of a child.

Any employee with 26 weeks’ service can request flexible working for any reason, provided that they have not made a request within the previous 12 months.

Whilst there are many benefits of flexible working for both employer and employee, businesses can refuse a request for flexible working citing

• The burden of additional costs.
• Detrimental effect on ability to meet customer demand.
• Inability to reorganise work among existing staff.
• Inability to recruit additional staff.
• Detrimental impact on quality.
• Detrimental impact on performance.
• Insufficiency of work during the periods the employee proposes to work.
• Planned structural changes.

The reason for refusal must be genuine: an employee can bring a claim to the Employment Tribunal if a flexible working request is refused on incorrect facts. Employers should also be alive to claims for indirect sex discrimination if women make requests to enable them to fulfil caring responsibilities.