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Employee Maternity Rights, Paternity and Shared Parental Leave

Welcoming a new baby into the family is an exciting time for you and your family.  A variety of working rights are available for new parents, each of which aims to support and assist you in your transition into parenthood. As an employee in Scotland, it is important that you are aware of your rights, and there are steps that can be taken to enforce them if your employer is falling short of their responsibilities to you.

Frequently Asked Questions

The following are some of our most frequently asked questions when it comes to maternity and paternity rights, and flexible working requests.

During your pregnancy, you are entitled to paid time off work for antenatal care. Antenatal care includes medical appointments and antenatal classes that your midwife or doctor advise you to attend. Before you take this time off, your employer may require you to produce a certificate from a doctor or midwife verifying your pregnancy and an appointment card showing that an appointment has been made.

You are also entitled to up to 52 weeks’ maternity leave. You can begin maternity leave following the beginning of the 11th week before the Expected Week of Childbirth (EWC). If you are unable to attend work for a reason related to pregnancy in the four weeks before your EWC or if your child is born early, your maternity leave will automatically begin.

You must not work in the two-week period following childbirth; this is known as compulsory maternity leave.  It is a criminal offence for an employer to allow you to work during the period of compulsory maternity leave. However, you can decide how much of your remaining maternity leave entitlement you wish to take. 

You will be entitled to these rights regardless of your length of service in employment. If you feel your rights are not being recognised by your employer, there are steps you can take. Our Employment Law Solicitors can help.

If you have completed 26 weeks of continuous employment at the end of the 15th week before your Expected Week of Childbirth, you will be entitled to Statutory Maternity Pay. Statutory Maternity Pay is payable for the first 39 weeks of maternity leave. 

If you are adopting a child, the primary adopter will be entitled to up to 52 weeks’ adoption leave. If you are adopting a child with a partner, you must decide who should be entitled to the 52 weeks of adoption leave. The remaining adopter will be entitled to two weeks’ leave (in accordance with paternity leave).

The primary adopter is entitled be paid statutory adoption pay for the first 39 weeks of your adoption leave.

If you are responsible for the upbringing of a child and have 26 weeks’ service with your employer, you can take up to two weeks’ paternity leave. You may take this period of leave during the first 56 days following childbirth or placement of an adopted child. The two-week period of statutory paternity leave is paid, and all other terms of your employment remain in force during this time. You may need to fill in a paternity leave form for your employer for statutory paternity pay.

See also ‘What is Shared Parental Leave?’ below.

You are entitled to accompany your partner to antenatal appointments. This right is available to you regardless of your length of service. You can exercise this right on two occasions during your partner’s pregnancy, although appointments must last no longer than 6½ hours each. There is no right for you to be paid for this time off. Furthermore, an employer can refuse your request for time off if refusal is considered reasonable in the circumstances. 

Shared Parental Leave allows parents to share the entitlement to maternity/adoption leave and pay between them. This means that the mother/adopter can choose to end their leave prematurely and transfer the remainder of their entitlement to the other parent, who normally would only be entitled to two weeks’ statutory paternity leave. Together you will have 50 weeks’ leave and up to 37 weeks’ pay to share as you wish. 

Keeping in Touch days (KIT days) describe a period of up to 10 days during maternity/ adoption leave where an employee can elect to work for her employer without ending her period of leave. You will be entitled to be paid the normal rate of remuneration for working a KIT day. There must be mutual agreement that you will work a KIT day; you cannot turn up at your workplace and expect to be offered work.

Your employer will continue to pay your pension contributions during the 39-week period when you receive Statutory Maternity Pay (SMP). The employer’s contributions will be based on your normal salary; however, your pension contributions will reflect your actual rate of pay during maternity leave (SMP).

The right to ask for flexible working is a relatively new employment right given under the Flexible Working Regulations 2014 and allows most employees the right to ask their employer to vary their hours if certain conditions are met. Your request for flexible working does not have to relate to childcare, parental responsibilities, and such like, although most requests for flexible working usually relate to these sorts of matters.

There is a procedure you must follow in order to formally request flexible working:

  • Your request must be lodged in writing. A verbal request is not enough.
  • Your written request must be dated. Dating your request is important as it allows you to keep track of when you lodged your request as your employer has three months to make a decision on your request.
  • You must be specific that you are making a formal request for flexible working under the Flexible Working Regulations. Without doing this, your employer may think you are only making an informal request only, which they have greater flexibility in rejecting.
  • Provide details of how you wish your hours to change and when you would work. You need to be as clear as possible in explaining how you would like your hours to change so your employer can determine whether your request can be accommodated.
  • Explain how you think your request could be accommodated by your employer and how any consequent effects could be handled. For example, you may wish to work fewer hours per week than your currently do but are prepared to deal with a broader range of matters when you are at work in return.
  • Notify your employer if you have previously lodged a request for flexible working and when.

The above requirements are very much the minimum needed for your employer to consider your request and you may wish to provide any further information that may improve your employer’s ability to deal with your request.

You can do so by making a flexible working request. In order to make a valid request for flexible working you must first meet certain criteria:

  • Be an employee. If you are an agency worker, an employee shareholder or member of the armed forces, you are generally excluded from making a request for flexible working.
  • Minimum period of employment. You must have worked for your employer for a minimum continuous 26 weeks. If you have worked for an associated employer or transferred to a new employer through a TUPE transfer, your time employed with them should be included.
  • One request in a 12-month period. You can make only one formal request for flexible working in a 12-month period. This means that if your employer rejects your formal request, you cannot lodge another until 12 months have elapsed.

Even if you do not meet these requirements, you can still informally ask your employer to work flexibly (although it would not be a formal request made under the Flexible Working Regulations 2014).

No, there is no requirement for you to give reasons to your employer about why you wish for a flexible work arrangement.

Your employer is allowed to reject your request for flexible working if their reason relates to one of the following only:

  • Burden of additional costs – if overall the cost saving of your employer granting your flexible working request is less than the cost they would have to meet to accommodate your flexible working
  • Detrimental effect on ability to meet customer demand – if your employer believes having you work flexible hours would hinder them in dealing with business demand.
  • Inability to reorganise work among existing staff – if your employer is concerned there are not enough existing staff to deal with the reorganised workload
  • Inability to recruit additional staff – if your employer believes they would have difficulty hiring new staff to accommodate the effect of your flexible working
  • Detrimental impact on quality – if your employer values any particulars skills you have and is concerned that by having you working flexibly there would be a reduction in the quality of work produced or undertaken
  • Detrimental impact on performance – if your employer is concerned that there could be a decline in workplace performance if you were to work flexibly - this could include the performance of your colleagues or subordinates
  • Insufficiency of work during the periods you propose to work – if there would not be enough work in the hours you wish to work for your request to be viable
  • Planned structural changes – if your employer is considering organising the business more generally and your request for flexible working would not fit in well with those proposed changes

These are the only grounds on which your employer may reject your flexible working request. You should usually be allowed to appeal against your employer’s rejection of your request for flexible working; however, the reason for rejecting the appeal can also only be on one of the above grounds.

Your employer must follow a fair redundancy process, including consultation with you, even though you are on maternity leave. 

You will be entitled to redundancy pay if you are made redundant while on maternity leave. Redundancy pay will be paid at your rate of pay before maternity leave. 

You will have a claim for automatic unfair dismissal if the only reason, or principal reason, for your selection for redundancy was as a result of you exercising your maternity rights.

You are entitled to be offered a suitable alternative vacancy if it is no longer practicable for the employer to employ you, due to the need to make redundancies. Employers must prioritise women on maternity leave for any alternative vacancies available in the workplace.

How can Thorntons help?

Thorntons specialist Employment Law Solicitors can advise you of your family-friendly rights, including maternity, paternity, adoption, shared parental rights, and flexible working requests.   

Our team of experienced employment lawyers can also help and support you if you have difficulty enforcing these rights. We can represent you to ensure that you receive your full entitlement to family-friendly rights.

Call the Thorntons Employment Law team on 03330 430 350 to find out more about our services, or complete our online enquiry form and we will contact you.

Depending on your case and circumstances, the first step is usually to arrange an appointment to come into one of our local offices to meet an Employment Law Solicitor to discuss your situation and the way forward. We will outline your options and, depending on your circumstances, we can look at various funding options to help with your case costs.

Please note we do not offer Legal Aid for this service.