Employment Law – Working parents
Right to apply to work flexibly
Parents of children aged under 16, or parents of disabled children aged under 18, have the right to apply to work flexibly. Their employers have a duty to consider such requests seriously, but can refuse such application after they have done so provided they give business reasons e.g. they cannot justify extra costs, cannot recruit more staff, or the quality/ performance of the business will be affected.
Employees can only make a statutory application if they have worked continuously for the same employer for the last 26 weeks and you can only make 1 statutory application each year. All employees now have the right to apply to work flexibly, and employers must consider such requests in a “reasonable manner“.
Right to paternity leave
Eligible employees can take up to two weeks paid leave to care for their new baby and support the mother. Employees must satisfy the following conditions in order to qualify for paternity leave:
- they must be either the father, the husband or partner of the mother (or adopter) or the child’s adopter
- be an employee.
- have worked for your employer continuously for at least 26 weeks by the end of the 15th week before the expected week of childbirth (known as the ‘qualifying week’)
- give the correct notice.
Eligible employees can choose to take either one week or two consecutive weeks’ paternity leave (not odd days).
They can choose to start their leave:
- from the date of the child’s birth (whether this is earlier or later than expected)
- from a chosen number of days or weeks after the date of the child’s birth (whether this is earlier or later than expected), or
- from a chosen date later than the first day of the week in which the baby is expected to be born.
Leave can start on any day of the week on or following the child’s birth but must be completed:
- within 56 days of the actual date of birth of the child, or
- if the child is born early, within the period from the actual date of birth up to 56 days after the first day of the expected week of birth.
Only one period of leave is available to employees irrespective of whether more than one child is born as the result of the same pregnancy.
Statutory Paternity Pay
During their paternity leave, most employees are entitled to SPP from their employers. SPP is paid by employers for either one or two consecutive weeks as the employee has chosen. The rate of SPP is the same as the standard rate of Statutory Maternity Pay this is £172.48 a week or 90% of average weekly earnings if this is less than £172.48.
- earn at least £120 a week (before tax) to qualify for SPP;
- be employed by your employer up to the date of birth;
- have worked for your employer continuously for at least 26 weeks by the end of the 15th week before the expected week of childbirth (known as the ‘qualifying week’);
- give the correct notice
Employees who do not qualify for SPP, or who are normally low-paid, may be able to get Income Support while on paternity leave. Additional financial support may be available through Housing Benefit, Council Tax Benefit, Tax Credits or a Sure Start Maternity Grant. Further information is available from your local Jobcentre Plus office or Social Security office.
Notice of intention to take paternity leave
Employees must inform their employers of their intention to take paternity leave by the end of the fifteenth week before the baby is expected, unless this is not reasonably practicable.
They must tell their employers:
· the week the baby is due;
· whether they wish to take one or two weeks’ leave;
· when they want their leave to start.
Employees can change their mind about the date on which they want their leave to start providing they tell their employer at least 28 days in advance (unless this is not reasonably practicable). Employees must tell their employers the date they expect any payments of SPP to start at least 28 days in advance, unless this is not reasonably practicable.
Employees are entitled to the benefit of their normal terms and conditions of employment, except for terms relating to wages or salary (unless their contract of employment provides otherwise), throughout their paternity leave. However, most employees will be entitled to SPP for this period. If the employee has a contractual right to paternity leave as well as the statutory right, he may take advantage of whichever is the more favourable. Any paternity pay to which he has a contractual right reduces the amount of SPP to which he is entitled.
Return to work after paternity leave
Employees are entitled to return to the same job following paternity leave.
Protection from detriment and dismissal
Employees are protected from suffering unfair treatment or dismissal for taking, or seeking to take, paternity leave. Employees who believe they have been treated unfairly can complain to an employment tribunal.
Care for dependants
All employees are also entitled to take a reasonable amount of (unpaid) time off work to deal with an emergency or unexpected situation involving a dependant.
Rights to parental leave and time off for dependants
Employees – both mothers and fathers – who have completed one year’s service with their employers are entitled to 18 weeks’ (unpaid) parental leave to care for their child. Parental leave can usually be taken up to a child’s 18th birthday. This is called “ordinary” or unpaid parental leave.
A right for fathers and partners to take time off to attend ante-natal appointments
This new right came into force on 1st October 2014 and is for up to 2 occasions for a maximum of 6.5 hours each time (although employers can be more generous with time off if they wanted to).
For the new right to apply, you must have a “qualifying relationship” with the pregnant woman, namely be the expectant father or partner (including same sex) of a pregnant woman. Partner includes spouse or civil partner to the pregnant woman and a person (of either sex) in a long-term relationship with her.
There is no qualifying period for this right, so you are entitled to the same from the first day you start employment. If you are dismissed or disciplined because of your request for time off to attend an ante-natal clinic, you could have a claim for unfair or constructive dismissal.
Shared parental leave
From 1st December 2014, Shared Parental Leave has become law.
Shared Parental Pay
As from 6 April 2022, Statutory Shared Parental Pay is paid at £172.48 or 90% of your average weekly earnings (whichever is lower).
If the mother or adopter curtails their entitlement to maternity/adoption pay or maternity allowance before they have used their full entitlement then Statutory Shared Parental Pay can be claimed for any remaining weeks.
To qualify for Statutory Shared Parental Pay a parent must pass the continuity of employment test. This means you must have worked for the same employer for at least 26 weeks at the end of the 15th week before the week in which the child is due (or at the week in which an adopter was notified of having been matched with a child or adoption) and you must be still employed in the first week that Shared Parental Leave is to be taken.
You also need to have earned an average salary of the lower earnings limit of £111 for the 8 weeks’ prior to the 15th week before the expected due date or matching date. The other parent in the family must also meet the employment and earnings test.
Can I still take shared parental leave and pay if I am made redundant before or during my shared parental leave (SPL)?
If your employment is terminated before the start of SPL, then you will lose your entitlement. This is because you must be employed up to the start of the week before your SPL starts.
The position is different if you are made redundant during your shared parental leave and you are receiving Statutory Shared Parental Pay. In these circumstances, you can continue to be paid for the remaining period of leave that has been booked unless you start a new job. Your shared parental leave will end on the day your employment ends as well as any employment benefits such as occupational shared parental pay (unless this can be negotiated this as part of a redundancy package).
If you are selected for redundancy because of your shared parental leave and you have lost some or all or you occupational shared parental pay, this could amount to unfair dismissal or automatic unfair dismissal. You would include any shared parental leave losses within any claim you could make.
Are you entitled to take time off work to look after your children who may be ill, or other dependants?
If you are an employee, you have a statutory right to take a reasonable amount of unpaid time off work to take necessary action to deal with your sick children or other dependants. This is known as ‘Time off for Dependants’ and is aimed at dealing with emergencies. This includes dealing with the unexpected disruption, termination or breakdown in care of your dependent (for example, if your childminder fails to turn up). You do not need to actually request the time off from your employer, but you should notify your employer as soon as it is reasonably practical that you need time off and how long you think you’ll be absent.
The statutory right to take time off in these circumstances applies to all employees – whether permanent, temporary, full time or part time. Those who are workers or self-employed do not have the same right. There is no right to be paid for the time taken, however, although a more generous employer may decide to do so.
There is no also minimum qualifying period of employment necessary for you to take time off for emergency care of your children, so the right applies from the first day of employment.
The time you take off does need to be necessary and reasonable. If you are part of a couple, for example, it may be expected that the other parent can be equally as active in the care of the sick child. Each case will turn on its own facts.
If you usually work from home, then it should be a lot easier for there to be some continuity of a normal working day, notwithstanding the illness of any dependant. If you are not able to work from home, for example you work in a customer facing role, then this should not impact on the right to take time off. Your employer would simply have to take practical steps to address this.
What happens if you are dismissed or disciplined for taking time off to look after dependants?
If your employer disciplines you for taking the necessary time off to care for a sick child, you have the right to complain to the Employment Tribunal for which compensation can be awarded. This right can apply either:
- where you are subjected to a ‘detriment’ because you have taken, or sought to take, time off for dependents, or
- your employer unreasonably refuses to allow you to take time off for dependents.
- where you are dismissed and the principal reason was because you took, or tried to take, time off to look after your child.
What counts as a “detriment” includes a disciplinary process, not receiving a promotion, or being denied training opportunities because you took, or sought to take, time off for look after your dependants, which included sick children.
If you are dismissed, you would be able to make a claim for “automatic unfair dismissal” without any qualifying period of service necessary (unlike most types of ordinary unfair dismissal claims).