Time off for antenatal care appointments

Time off for adoption appointments

Suspension on maternity grounds

Maternity leave

Note: the rules on maternity leave that are described here apply, as the default position on the rights of a qualifying employee, unless and until they are displaced by that employee and her partner validly opting for shared parental leave (see Shared parental leave below).

Qualification and scope

No employee may work for the two weeks immediately after the date of childbirth ('compulsory maternity leave').

An employee is entitled to a maternity leave period (MLP) of a maximum of 52 weeks (including compulsory maternity leave). This consists of 26 weeks’ ‘ordinary maternity leave’ (OML) and 26 weeks’ ‘additional maternity leave’ (AML).

To qualify for this entitlement, the employee must notify her employer, by the 15th week before her expected week of childbirth (EWOC), that she is pregnant, of the EWOC and when she wants the leave to start.

The employee can choose to start her leave at any time during the eleven weeks before the EWOC (although leave starts automatically if the employee is absent for a reason to do with pregnancy during the four weeks before the EWOC).

The employee may change the starting date of her leave, provided that she tells her employer at least 28 days in advance of that starting date, unless this is not reasonably practicable. If requested, she must provide a medical certificate that shows the expected date of childbirth.

Once the employee has notified the employer of the starting date of her leave, the employer must respond within 28 days telling the employee the date on which she is expected to return to work if she takes her full 52-week entitlement to maternity leave.

The contract of employment continues during both OML and AML and all the employee’s contractual benefits, apart from pay, are maintained during the whole of her MLP. The MLP also counts as pensionable service.

Contact during maternity leave

Both the employer and employee may contact each other to discuss matters to do with work or maternity, provided that the amount or type of contact is reasonable. An employee may do up to ten ‘keeping in touch’ (KIT) days, doing agreed work, for an agreed rate of pay, without bringing her maternity leave to an end.

The pay for a KIT day is offset against any statutory maternity pay (see below) due for the week in which the KIT day falls.

Return to work after maternity leave

The same notice of return requirements apply both to OML and to AML.

If the employee wishes to return before the end of either OML or AML, she must give her employer at least eight weeks’ notice of the date on which she wants to return. If she fails to do so, the employer can postpone her return for up to eight weeks after her request was made, as long as this does not delay her return beyond the end of the full 52-week MLP.

The employee does not have to give any notice to return on the expiry of either the 26-week OML or the 52-week MLP.

After OML, the employee has the right to return to the job she was in before her leave started, with all the rights she had, unless that is not possible because of redundancy – in which case she is entitled to be offered any suitable available vacancy before a redundancy dismissal can be fair.

After AML, she may only return to the same job if it is reasonably practicable. If it is not for a reason other than redundancy, a suitable alternative job must be offered. And if return to the same job is not possible because of redundancy, the position is as for return from OML above.

The employee may ask to return to work part-time after maternity leave (see also Flexible working requests). This is not within the scope of her statutory right to return (see above) and, in that sense, the employer can refuse the request. However, if the employer does so without a business justification, the woman may bring a claim for indirect sex discrimination.

If the employer refuses to allow a woman to exercise the right (whether pure or adapted as described above) to return to work after maternity leave, she will be regarded as dismissed and the dismissal will be automatically unfair. This could lead the woman to make a claim to the employment tribunal and to an award of compensation.

If a woman is found to have suffered a detriment because of pregnancy or maternity leave, an employment tribunal can award her unlimited compensation.

Statutory maternity pay

Paternity leave

Note: The rules on paternity leave described here apply, as the default position on the rights of a qualifying employee, unless and until they are displaced by that employee and their partner validly opting for shared parental leave (see Shared parental leave).

Qualification

An employee must:

◉ have, or expect to have, responsibility for the child’s upbringing; and

◉ be the biological father of the child, or the mother’s husband or partner; and

◉ have worked continuously for the employer for 26 weeks leading into the 15th week before the baby is due.

Paternity leave

An employee is entitled to two weeks’ paternity leave (PL). The leave can be taken as two consecutive weeks or as one week. If only one week is taken, the entitlement to the second week is lost.

The leave must be taken within 56 days of the actual birth of the child, or, if the child is born early, within the period from the actual birth up to 56 days after the originally expected week of birth.

Only one period of PL may be taken, irrespective of whether more than one child is born as a result of the same pregnancy.

The employee must tell the employer of their intention to take PL by the 15th week before the baby is expected, and must also tell the employer:

◉ the week the baby is due

◉ whether they wish to take one or two weeks’ leave

◉ when they want the leave to start.

The employer can ask the employee to provide a self-certificate as evidence of entitlement to paternity leave. HMRC has a ‘model’ self-certificate for this purpose.

The employee can change their mind about when they want PL to start, provided that they tell the employer at least 28 days in advance of the day they want leave to start (unless this is not reasonably practicable).

The employee’s contract of employment remains in existence during PL, except for terms about wages or salary.

The employee is entitled to return to the same job after PL.

The employee is protected from suffering a detriment or unfair dismissal for reasons to do with taking, or seeking to take, PL. If the employee believes they have been treated unfairly, they can complain to the employment tribunal, irrespective of their length of service.

Statutory paternity pay

Adoption leave

Note: the rules on adoption leave as described here apply, as the default position on the rights of a qualifying employee, unless and until they are displaced by that employee and his or her partner validly opting for shared parental leave (see Shared parental leave).

Qualification and scope

An employee who has been matched with a child for adoption is an ‘adopter’.

A sole adopter or, as part of an adult couple, a primary or lead adopter is entitled to 26 weeks’ ordinary adoption leave (OAL), followed by 26 weeks’ additional adoption leave (AAL) – a total of 52 weeks’ leave, called the Adoption Leave Period (ALP).

To qualify for adoption leave, an employee must be newly-matched with a child for adoption by an approved adoption agency.

Adoption leave is not available when a child is not newly-matched for adoption, for example when a step-parent or foster parent is adopting a partner’s child.

The adopter is required to inform the employer of the intention to take leave within seven days of notification of having been matched with a child for adoption, unless this is not reasonably practicable. The adopter must tell the employer when the child is expected to be placed and when adoption leave is to start.

The employer can ask for evidence of entitlement to adoption leave. In this case, the adopter must provide a ‘matching certificate’ from the adoption agency. The adopter must then give the employer 28 days’ notice of the date the adoption leave is to start.

The employer has 28 days to respond in writing to an employee’s notification of leave. The employer must state when the employee is expected to return to work, assuming the full entitlement to leave is taken.

An adopter can change the date on which adoption leave and Statutory Adoption Pay are to start, giving at least 28 days’ notice, unless this is not reasonably practicable.

All contractual benefits, apart from pay, are maintained during the ALP.

Contact during adoption leave

Both the employer and employee may contact each other to discuss matters to do with work or adoption, provided that the amount or type of contact is reasonable. An employee may do up to ten ‘keeping in touch’ days, doing agreed work, for an agreed rate of pay, without bringing the adoption leave to an end. The leave period is extended by the number of days worked.

Return to work after adoption leave

An employee who wishes to return before the end of either OAL or AAL must give the employer at least eight weeks’ notice of the date of return. If the employee fails to do so, the employer can postpone the return for up to eight weeks after the request was made, as long as this does not delay the employee’s return beyond the end of the full 52-week ALP.

The employee does not have to give any notice to return on the expiry of either the 26 weeks’ ordinary leave or the 52 weeks’ full leave.

Other than when the previous job has become redundant (in which case, the employee is entitled to be offered any suitable available vacancy), an employee returning from OAL is entitled to return to their previous job where the OAL was:

◉ an isolated period of leave; or

◉ the last of two or more consecutive periods of statutory leave (maternity, paternity, adoption, shared parental or unpaid parental) which did not include any:

○ unpaid parental leave lasting more than four weeks; or

○ periods of statutory leave which, when added to other periods of statutory leave (excluding unpaid parental leave) relating to the same adoption, meant a total absence of more than 26 weeks.

When returning from a period of OAL that is not covered by these provisions or returning from AAL, the right to return to the previous job is qualified not only by redundancy (where any suitable available vacancy must be offered) but also where it is not reasonably practicable, for a reason other than redundancy, to allow the employee to revert to that job. Here, the employee must be offered another job that is suitable and appropriate.

If the employer refuses to allow an employee to exercise the right (whether absolute or adapted as described above) to return to work after adoption leave, the employee will be regarded as dismissed and the dismissal will be automatically unfair. The employee could make a claim to the employment tribunal, which may award compensation.

If an employee is found to have suffered a detriment because of adoption or adoption leave, an employment tribunal can award unlimited compensation.

Statutory adoption pay

Partner leave on adoption

Statutory paternity pay on adoption

Shared parental leave and pay

This is a scheme to allow a mother who is entitled to statutory maternity leave or a primary adopter who is entitled to statutory adoption leave to curtail that entitlement so they may share the balance of the leave with the child's other parent/adoptive parent with main responsibility for care of the child in question.

Qualification and registration

To be eligible to take SPL, the mother/primary adopter (A) must:

◉ have at least 26 weeks' continuous employment and still be in employment at the 15th week before the EWC or at the week of adoption matching notification;

◉ have a partner, the other parent/adoptive parent (B), who has worked on an employed or self-employed basis in 26 of the last 66 weeks, earning a minimum of £30 per week on average for 13 of those weeks.

◉ be entitled to statutory maternity or adoption leave;

◉ 'curtail' maternity or adoption leave, either by returning to work or by serving a 'curtailment notice';

◉ serve a notice of entitlement and intention to take SPL or a declaration that B has served such a notice on their employer.

To be eligible to take SPL, the other parent/adoptive parent (B) must:

◉ satisfy the same requirement as A for continuous employment;

◉ have a partner, the mother/primary adopter (A), who:

○ has worked on an employed or self-employed basis in 26 of the last 66 weeks, earning a minimum of £30 per week on average for 13 of those weeks;

○ was entitled to statutory maternity or adoption leave which has been curtailed.

Note:

(1) a curtailment notice should be served at least eight weeks before the desired end of maternity or adoption leave but it cannot specify an end to maternity or adoption leave that falls within the compulsory maternity leave period of two weeks following the date of childbirth or an equivalent period in adoption cases.

(2) a notice of entitlement and intention to take SPL is non-binding, but it must nevertheless specify:

◉ the EWC and the child's date of birth or, alternatively, the date A was notified of matching for adoption and either the date that the child is expected to be placed for adoption or the date of the placement;

◉ the start and end dates of any maternity or adoption leave taken or to be taken by A;

◉ the total amount of SPL available;

◉ how much SPL A and B each intend to take;

◉ the proposed start and end dates of each spell of SPL to be taken by the person serving the notice (A or B);

◉ and must be served at least eight weeks before the start of the first such proposed spell. It must also identify the other parent/adoptive parent and include a declaration by them that they consent to the proposed leave.

Verification and finalisation process

On receiving a notice of entitlement and intention, an employer may (but is not obliged to) request the employee to provide, within 14 days:

◉ a copy of the child's birth certificate or, alternatively, one or more documents issued by the adoption agency showing its name and address, the date A was notified of matching for adoption and the date on which the agency expects placement of the child to happen; and/or

◉ the name and address of the other parent's/adoptive parent's employer.

Final notice

An employee must give their employer, at least eight weeks before the start date of any SPL - therefore, possibly at the same time as the curtailment notice and the notice of entitlement and intention (see above) - a 'period of leave notice' (PLN).

It can cover more than one planned spell of SPL, in which case it must be served at least eight weeks before the first such spell.

If given before the birth or placement for adoption, the PLN must feature:

◉ a start date expressed as the date of birth or a number of days following birth or, alternatively, a number of days following placement; and

◉ an end date expressed as a number of days following the birth or, alternatively, the placement.

Sequel to a PLN

Where the employee's PLN records a wish to take one continuous spell of SPL, the employer must allow it.

Where it records a wish to take two or more separate spells of SPL, the employer has a period of 14 days, beginning with the date on which the PLN was given, to:

◉ consent to the spells of SPL requested;

◉ propose alternative dates; or

◉ refuse the spells requested without proposing alternative dates.

In the last instance, or if the employer proposes alternatives but no agreement is reached within the 14 days, the employee has the choice of:

◉ taking his or her total entitlement to SPL in one continuous spell (in which case, unless, within five days of the end of the 14 day period, they notify the employer of a new start date falling at least eight weeks after the date the original PLN was served, their SPL will begin on the start date of the first spell of leave requested in that PLN); or

◉ withdrawing the PLN by the 15th day after it was originally served.

Notice to vary leave

Once entitled to a period of SPL (whether in continuous or discontinuous spells), an employee may serve a 'variation notice' (VN) to:

◉ change the start or end date of any spell of SPL (provided the VN is given at least eight weeks before both the old and new dates);

◉ request that separate spells of SPL become a continuous one, or vice-versa; or

◉ cancel a spell of notified SPL (provided the VN is given at least eight weeks before that spell is due to begin).

Note:

(1) the same conditions apply to the sequel to a VN as apply to the sequel to a PLN (see above).

(2) the minimum of eight weeks for serving a VN is replaced by 'such period as is reasonably practicable' where a child is born before the first day of the EWC and, because he or she has a start date of a spell of SPL in the eight weeks following the EWC, an employee wants to bring forward that start date so that the spell of SPL begins the same length of time after birth as it would have done had time been counted from the first day of the EWC.

Number of notices

An employee may only serve a total of three notices of leave (PLNs and VNs combined) per employer. This excludes any PLN requesting discontinuous SPL which was withdrawn on or before the 15th day after it was given and any VN served where a child was born earlier than the first day of the EWC (see above).

However, this limit may be waived and varied (increased) by agreement between the parties.

Contact during SPL

Both the employer and employee may contact each other to discuss matters to do with work and/or the leave, provided that the amount or type of contact is reasonable.

An employee may do up to 20 days' agreed work (at an agreed rate of pay) for the employer during SPL without bringing the SPL to an end. These are known as 'shared parental leave in touch' (SPLIT) days and are additional to any entitlement to KIT days (see above) when on maternity or adoption leave.

Return to work after SPL

No notice is required to return on the date(s) fixed as a consequence of the PLN.

The principal right is to return to the job occupied before absence, on rights and terms at least as favourable as if there had been no absence. Failure to allow the employee to exercise that right will normally be an unfair dismissal. However, the right is varied where:

◉ it is not practicable for the employee to return to the previous job by reason of redundancy. In this case, the employer must offer the employee any suitable alternative vacancy that exists (with it or with a successor or associated employer), on terms and conditions that are not substantially less favourable than those of the previous job. If this is not done, the resulting dismissal will be automatically unfair (see Chapter 10).

◉ The employee returns from a spell of SPL which:

○ when added to other statutory leave taken in relation to the same child, means the employee has been absent in total for more than 26 weeks; or

○ is the last of two or more consecutive periods of statutory leave in relation to the same child which included a period of parental leave of more than four weeks (see below) or a period of AML or AAL (see above).

In these two cases, if return to the original job is not reasonably practicable, the right to return becomes one to another job which is both suitable and appropriate for them.

If an employee is found to have suffered a detriment for a reason related to SPL, an employment tribunal can award unlimited compensation.

Change alert: the Government intends to extend SPL to working grandparents, possibly in 2018, although it still has to complete consultation about detailed implementation.

Statutory shared parental pay

Flexible working

Flexible working requests

Scope of the right to request

The right to apply to an employer to work flexibly is open to any employee who has at least 26 weeks’ continuous employment and who has not made another application to work flexibly under this right in the previous 12 months.

Nature and effect of requested changes

Employees can request:

◉ a change in their hours of work

◉ a change to the times when they are required to work

◉ to work from home.

If a request is accepted, it will lead to a permanent change in the employee’s terms and conditions of employment.

Processing a request

An employee who wishes to make an application to work flexibly must do so in writing. The application must state that it is a request for flexible working; the flexible working pattern that is applied for and the date on which the employee proposes it should start; and the effect of the change on the business and how this effect could be dealt with.

The employer has a duty to consider the request reasonably and make a decision on it within a standard period of three months (capable of extension by agreement), including any appeal that the employer allows.

An employee’s application will be treated as withdrawn if the employer notifies the employee of that outcome when:

◉ they failed to attend the first two meetings to discuss it; or

◉ they failed to attend the first two appeal meetings (if an appeal is allowed).

Can an employer refuse an application for flexible working?

It can be refused for one, or more, of the following reasons:

◉ the burden of additional costs

◉ the detrimental effect on the ability to meet customers’ demands

◉ the inability to reorganise work among the current staff

◉ the detrimental impact on quality or performance

◉ an inability to recruit

◉ insufficiency of work during the periods when the employee proposes to work

◉ planned structural changes.

Referral to the employment tribunal

An employee may refer a complaint about a request if:

◉ the employer fails to deal with the application in a reasonable manner

◉ the employer fails to notify the employee of a decision within the decision period

◉ the decision was based on incorrect information

◉ the reason given for the refusal is not one that is specified

◉ a decision to treat the application as withdrawn was not based on a specified reason (see above).

If the employee's complaint is upheld, the tribunal can order the employer to reconsider and/or to pay compensation. The maximum compensation that the tribunal can award is eight weeks’ pay, at a maximum of £525 per week.

An employee has the right not to suffer a detriment, or to be dismissed, for seeking to exercise the right to request flexible working or for accompanying or seeking to accompany someone who wishes to exercise the right.

Guidance

Operation of the flexible working right is supported by a Code of Practice issued by Acas, which can be taken into account by the employment tribunal, and a supplementary Good Practice Guide.

Parental leave

Time off for dependants