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Maternity, Paternity and Shared Parental Leave

Employees with families have a host of rights and protections which, as an employer, you must be aware of. These are the right to maternity, adoption, shared parental and paternity leave, flexible working, time off for dependants and unpaid parental leave – collectively known as ‘family-friendly’ rights. These rights are important because they provide employees with the flexibility to structure work around their family life and place obligations on you, as their employer, to support them to take leave and to return to the workplace. 

The eligibility and notice requirements for taking family-friendly leave are often complex. By implementing family-friendly policies, you will make sure that your employees know what is expected of them if they want to take maternity, adoption, shared parental or paternity leave, flexible working, time off for dependents or parental leave and ensure they understand what their rights are.

Family-friendly rights

As an employer, you need to support the range of rights and protections in place for employees with families, including: 

Leave entitlement: All employees are entitled to 52 weeks’ maternity leave, regardless of their length of service. This period of time is split into ordinary maternity leave (OML), which is the first 26 weeks of leave, and additional maternity leave (AML), which is a further 26 weeks of leave entitlement. 

The earliest date for maternity leave to begin is the 11th week before the expected week of childbirth (EWC). However, if the mother is absent from work for a reason related to her pregnancy in the four weeks before the EWC, or if the child is born early, maternity leave will automatically start. 

Your employee should give you notice of her intention to take maternity leave no later than the 15th week prior to the EWC but you should encourage employees to tell you as soon as is reasonably possible. This will allow you to arrange cover during their leave.

Employees must not work for two weeks following the day of childbirth. This is known as compulsory maternity leave. Unlike the remainder of the maternity leave entitlement, this leave is not optional and it is a criminal offence for you to allow an employee to work during this period. 

Pay entitlement: In addition to leave entitlement, qualifying employees are entitled to be paid Statutory Maternity Pay (SMP) by their employer. As an employer, you can claim all or most of SMP back from HMRC. A ‘qualifying employee’ must have completed 26 weeks’ of continuous employment at the end of the 15th week before her EWC. Qualifying employees are eligible for SMP in the first 39 weeks of maternity leave. SMP is 90 per cent of their average weekly earnings before tax for the first six weeks and then a rate set by the government (for the current rate of SMP, please see the government website) or 90 per cent of their average weekly earnings (whichever is lower) for the next 33 weeks. Tax and National Insurance will be deducted.

Returning to work: The employee can decide how much of her maternity entitlement she wants to use. However, she must give you eight weeks’ notice of her return date if she wishes to return before the end of the 52-week leave period.

On return from OML, an employee is entitled to return to the job that she was employed at before their absence.

If an employee returns to work following a period of AML or more than four weeks’ parental leave in addition to OML, she is also entitled to return to the job she was employed at before her leave, but if this is not reasonably practicable the employer may place her in a suitable alternative role. This might be necessary if your organisation has had a reshuffle or if her role has changed during the period of absence. 

All employees must not have less favourable terms of employment on their return to work. An employee will also be entitled to any benefits or improvements that her role was subjected to in her absence (such as pay rise or changes to terms and conditions).

Employees with 26 weeks’ service and who have responsibility for a child’s upbringing are entitled to up to two weeks’ paternity leave. This period of leave must be taken during the first 56 days following childbirth or placement of an adopted child.

During the paternity leave, employees are subject to their normal terms and conditions and are entitled to be paid Statutory Paternity Pay. This increases each year and is set by the government. It is currently 90 per cent of average weekly earnings or the rate set by the government (for the current rate of SPP, please see the government website), whichever is lower, and tax and National Insurance will be deducted. You must allow the employee to return to the same job after their period of paternity leave.

Your employee has to give you notice of their intention to take paternity leave no later than the 15th week before the expected week of childbirth (EWC). However, the earlier they can notify you the better as it helps you to prepare for their absence.

Identical to entitlement of maternity leave, adoption leave allows one of the adoptive parents to 26 weeks’ ordinary adoption leave (OAL), followed by 26 weeks’ additional adoption leave (AAL). The other adoptive parent will be entitled to paternity leave.

An employee will qualify for adoption leave if they:

  • Are the child’s adopter
  • Have 26 weeks’ service
  • Have been matched with a child for adoption
  • Have notified the adoption agency that they wish to proceed with the adoption, and
  • Have evidenced the requirements above and provided notice of their intention to take leave

Qualifying employees will be eligible for statutory adoption pay (for the current rate, please see the government website) for a period of 39 weeks and should remain subject to the terms and conditions of their contract during their period of leave.

As with maternity leave, on return from OAL, an employee is entitled to return to the job that they were employed at before their absence. If an employee returns to work following a period of AAL or more than four weeks’ parental leave in addition to OAL, they are entitled to return to the job that they had before going on leave, but if this is not reasonably practicable the employer may place them in a suitable alternative role. All employees must not have less favourable terms of employment on their return to work.

Shared Parental Leave (SPL) provides parents with the flexibility to share maternity/adoption leave and pay. This means the mother/adopter can choose to curb their period of maternity or adoption leave and transfer some their entitlement to the other parent who would ordinarily only be entitled to two weeks’ paternity leave. Together, the couple will share up to 50 weeks’ leave and up to 37 weeks’ pay and they can break the leave down into up to three blocks that they take separately or together.

Any employee who wishes to exercise their right to SPL must notify you of their intention to opt into the scheme and give you notice of each block of leave they intend to take. With two parents and two employers involved, the notice requirements are complex and it is recommended you seek advice if an employee requests SPL and have a policy in place to guide employees and your managers as to what is required.

Parental leave is not to be confused with Shared Parental Leave, explained above, which is different. 

With parental leave, an employee may be eligible for up to 18 weeks’ unpaid leave if:

  • They have been continuously employed for at least one year
  • Have responsibility for a child
  • The leave is for the purpose of caring for a child, and
  • The child is younger than 18 years of age at the time of leave

Employees must take parental leave in blocks of at least one week and cannot take more than four weeks in any one year. Employees should give you 21 days’ notice of their intention to take parental leave and you can ask your employee to provide you with evidence of their position of parental responsibility.

Any employee who has 26 weeks’ continuous employment is entitled to request flexible working for any reason. Flexible working includes a change to the hours or days the employee works or a change to their workplace. It can even include an increase in hours.

The employee’s application must be made in writing and dated, and should specify what change they want to make and how any impact on the business can be mitigated. Employees can make only one formal application in each 12-month period but can make additional informal requests.  To help make the process clear, your staff handbook should explain how to submit a request.

If you wish to refuse the request, your reason or reasons for refusal must fall within eight specific statutory reasons. You must inform the employee of the reason or reasons and give them the right to appeal. Even if one of the statutory grounds exists there is the possibility a refusal may amount to discrimination and you are advised to take legal advice before refusing an application.   You must deal with the request reasonably and the whole process, from receipt of the request to outcome of any appeal, must be dealt with within three months of the day that the request was received.

Employees are entitled to unpaid leave from work to enable them to provide care or arrange care for a dependant. This right allows employees to respond to the needs of a spouse, civil partner, child, parent, or other individual who lives with them but who is not a boarder, lodger, employee or tenant. Eligible employees are entitled to a ‘reasonable’ period of absence; how long this period is will depend on the individual circumstances.

The period of leave is intended to allow an employee to:  

  • Provide assistance on an occasion when a dependant falls ill, gives birth or is injured or assaulted
  • Make arrangements for the provision of care for a dependant who is ill or injured
  • Make arrangements following the death of a dependant
  • Deal with the unexpected disruption or termination of arrangements for the care of a dependant, or
  • Deal with an incident which involves their child and which occurs unexpectedly when the child is the responsibility of the educational establishment they attend.

Employees are obliged to inform you of the reason for their absence and this will enable you to identify if the right to time off applies. They should also tell you how long they will be absent, unless it is not reasonably practicable for them to assess this. 

How can Thorntons help?

We can help you understand your obligations in relation to employees who wish to take family-friendly leave and how to manage employees on their return to work from a period of leave.

Our specialist employment lawyers can also advise you on the content of family-friendly policies to make sure you have consistent, effective policies which will guide your employees and managers on the processes to follow.

With our proactive and commercial advice Thorntons Employment Law team can help make sure you are meeting your obligations to your employees with families over their rights and protection. Give one of our team a call on 03330 430 350 , or complete our online enquiry form and we will contact you.