Parental Rights at Work

Working parents have the following legal rights:^[1]

• Paid and unpaid maternity leave;

• paid paternity leave;

• paid and unpaid adoption leave;

• to request flexible working hours;

• unpaid parental leave for parents of children under five (18 if your child is disabled); and

• unpaid time off to deal with unexpected problems with the care of dependants.

These rights apply to parents in same-sex as well as in opposite-sex relationships.

Paternity leave

If you are a working father, you are entitled to one or two weeks’ paternity leave when you and your partner have a child. Some other people are also entitled to paternity leave – see below. You can also qualify for paternity leave when you adopt a child. Most fathers will be entitled to statutory paternity pay for their paternity leave. Statutory Paternity Pay is paid at the same rate as Statutory Maternity Pay.

To qualify for paternity leave for a birth, you must:^[2]

• Have been employed by the same employer for at least 26 weeks by the end of the 15th week before the expected week of childbirth;

• be the biological father of the child, or be married to or be the partner of the baby's mother (this includes same-sex partners, whether or not they are registered civil partners);

• have some responsibility for the child's upbringing; and

• have given your employer the correct notice to take paternity leave.

To qualify for paternity leave for an adoption^[3], you must:-

• Be employed for at least 26 weeks by the time you are matched with your child for adoption. (You will not be entitled to paternity leave or pay if you already know the child, for example, if it's your stepchild);

• not be taking adoption leave. (Where you and a partner are adopting a child, one of you can take adoption leave and one paternity leave);

• have some responsibility for the child's upbringing; and

• have given your employer the correct notice to take paternity leave.

When can you take paternity leave?

If you are taking paternity leave for a birth, the leave can start either on the day the baby is born or on a date that has been agreed in advance with your employer.

Your paternity leave cannot start before the baby is born, and, if you are agreeing a date later than the birth of your baby, it must be completed within 56 of days of the birth.

If you are taking paternity leave for an adoption, the leave can start either on the day that the child is placed with you, or on a date that has been agreed in advance with your employer. If you are agreeing a later leave date later than the date your child was placed with you, the leave must be completed within 56 days of the adoption date.

Telling the employer about your paternity leave

You need to be able to show your employer that you are entitled to paternity leave. To do this you must give the employer the following information:-

• Your name;

• the date the baby is due or the date of the birth. If you are adopting a child you should give the date that you were matched with your child or the date on which the child is placed with you;

• the date when you would like your paternity leave (and pay) to start;

• whether you are taking one or two week's paternity leave;

• a declaration that you are entitled to paternity leave; and

• a declaration that you are taking leave to support the mother or care for the child.

You can use self-certificates to provide this information to your employer.

You must also give your employer notice that you want to take paternity leave. The notice must be in writing if your employer asks for written notice. You must give notice 15 weeks before the baby is due or, if this is not practical, as soon as possible once you know you want to take leave. If you are adopting a child, you must give notice no later than seven days after the date you are matched with your child for adoption. If this is not practical you must give notice as soon as possible once you know you want to take paternity leave.

If you change your mind about when you want to take paternity leave you can, but you should give your employer 28 days' notice of the changed date.

Sharing leave^[4]

If you are expecting a child on or after 3 April 2011, or you are adopting a child which is matched with you on or after 3 April 2011, you may be able to share leave between yourself and your partner.

If your partner hasn't used up all of their statutory maternity leave and has gone back to work, you can take the remainder of their leave off instead.

This is called additional paternity leave. You can take this after the baby is 20 weeks old but before they are 1 year old. You have to take the leave all in one go.

You have to give your employer notice that you want to take additional paternity leave. You also have to give them evidence that you are entitled to it. This includes a declaration from your partner that they have gone back to work.

If your partner hasn't used up all their entitlement to statutory maternity pay or maternity allowance, you can be paid additional statutory paternity pay for the rest of the time they were entitled to it.

Adoption leave^[5]

If you are a working parent who has been matched with a child for adoption or if you have had a child placed with you for adoption, you may be entitled to adoption leave. You must have worked for your employer for at least 26 weeks ending with the week in which you are notified you have been matched with a child for adoption.

If you adopt a child from overseas there are different rules. In this case you must have worked for your employer for at least 26 weeks by the end of the week in which you receive official notification, or from the day you started working for your employer.

Adoptive parents are entitled to up to 52 weeks’ adoption leave. Most parents will be entitled to Statutory Adoption Pay (SAP). This is paid at a flat rate of £138.18 a week, or 90 per cent of your normal weekly earnings, whichever is lower. You get SAP for 39 weeks.

You may also be entitled to some adoption pay under your employment contract. Where a couple adopts a child, only one parent is entitled to take adoption leave.

The other parent may be able to take paternity leave. This includes same-sex couples.

Telling the employer about your adoption leave

You must notify your employer that you want to take adoption leave no more than seven days after you have been notified that you have been matched with a child for adoption, or as soon as is practical after this. You must tell your employer the date on which you expect the child to be placed with you and the date on which you want your statutory adoption leave to start and how much leave you want to take.

The partner of a person who adopts, or in a couple the person who is not taking adoption leave, may be entitled to paternity leave and pay.

The right to parental leave

Parental leave is available to anyone who has, or expects to have, parental responsibility for a child. The right applies to each child: an employee with one child may normally take 18 weeks' leave and an employee with two children would be entitled to 36 weeks' leave in total.

All eligible employees may:

• Take a total of up to 18 weeks' unpaid parental leave for each child for the purpose of caring for that child;

• Take the parental leave at any time: Before the child's fifth birthday; before the fifth anniversary of the date of placement in the case of an adopted child; or before the child's 18th birthday in the case of a child entitled to a disability living allowance;

• Benefit from certain contractual rights and obligations during the period of parental leave absence; and

• Return to the same job (or in certain cases a suitable alternative job) after the expiry of the leave.

The right to ask for flexible working^[6]

If you are the parent of a child, you have the right to ask for flexible working if your child is:

• under 17

• under 18 and disabled.

You must also have worked for your employer for at least 26 weeks and must be responsible for your child on a day to day basis.

If you are caring for an adult, you also have the right to ask for flexible working.

Flexible working can include working part time, working school hours, working flexitime, home working, job sharing, shift working, staggering hours and compressing hours (where you work your total number of agreed hours over a shorter period).

Although you have the right to ask to work flexibly, your employer doesn't have to agree to it. However, they must give your request serious consideration and have a good business reason if they decide not to agree.

You can make one request to work flexibly each year. This must be in writing. You should say how you think the change in your working pattern will affect your employer's business and how this might work in practice.

Your employer must also follow a standard procedure for considering your request. This includes having a meeting with you. If your employer wants to turn down your request for flexible working, they must give their reasons in writing. You have the right to appeal if your request is turned down. You must do this in writing, within at least 14 days of getting your employer's decision. You should give your reasons for appealing and make sure your appeal is dated.

If your appeal for flexible working is refused, you may be able to:

• Ask ACAS to help you sort out your dispute with your employer (in Northern Ireland this is the Labour Relations Agency). ACAS has set up a flexible working arbitration scheme to deal with this type of dispute; and

• complain to an employment tribunal.

You can only complain to an employment tribunal under certain circumstances, for example, where your employer hasn't followed the procedure properly for considering your request or where they haven't taken the right information into account when making their decision.

You may also be able to make a claim to an employment tribunal for discrimination. For example, you can make a claim if you are a man and your request to work part-time to look after your children is refused when a request by a female employee would be accepted. If you are a woman, you may be able to make a claim on the basis that refusing to allow you to work flexibly is 'indirect sex discrimination'. This is because more women than men have childcare responsibilities.

You should also bear in mind that an employment tribunal may not be able to over-turn your employer's decision. However, it may be able to force your employer to reconsider your request or to award you compensation.

Maternity rights^[7]

There are a number of rights for pregnant women given by the law. These are known as statutory rights:-

• The right of all pregnant women to take time off work for ante-natal care;

• the right of all pregnant women to work in a safe environment;

• the right of all pregnant women to claim discrimination and unfair dismissal if dismissed because of pregnancy or maternity leave, see under heading;

• the right to take up to 52 weeks’ maternity leave;

• the right of some pregnant women to Statutory Maternity Pay (SMP); and

• the right to return to work after you have had the baby. A refusal to allow you to return to work after having your baby will be a dismissal and will also be discrimination.

Extra rights given by the contract of employment

The statutory rights outlined above are minimum rights. Many workers will have better rights in their contract of employment.

Workers who do not have statutory maternity rights

Some workers do not have any statutory maternity rights. They are:-

• Share fisherwomen;

• women who are normally employed abroad (unless they have a work connection with the UK);

• self-employed women; and

• policewomen and women serving in the armed forces, who are entitled to Statutory Maternity Pay and can claim sex discrimination but who are not entitled to the other rights for pregnant workers.

Time off for ante-natal care

Who qualifies?

Any woman (except some types of workers) who is working and pregnant will qualify, regardless of how long they have worked for their present employer, and regardless of how many hours per week they work.

The right to paid time off

You can have time off for appointments for ante-natal care if your doctor, midwife or health visitor advises that it is needed. Your employer should pay your usual wage for the time off, as long as you only have a reasonable amount of time off.

However, if you take a lot of time off, you may be treated as if you are off sick, and will only get paid if your contract of employment allows for you to be paid sick pay. If you are off sick, you may qualify for Statutory Sick Pay (SSP) or

Employment and Support Allowance (ESA)^[8]

After the first ante-natal appointment, you will have to show your employer, if requested, a medical certificate stating that you are pregnant, and an appointment card for the ante-natal care.

There is no legal right for fathers to have time off work to attend ante-natal appointments. However, the Government recommends that employers allow fathers either to take paid time off, or to make up lost time later.

If your employer refuses time off or refuses to pay for time off

If your employer refuses to allow time off for an ante-natal care appointment or refuses to pay, you can complain to an employment tribunal within three months of the appointment. The tribunal may tell your employer to pay the wages they have withheld.

Right to work in a safe environment^[9]

An employer has a legal duty to make the working environment safe for all employees, and particularly for women of childbearing age, to work in. This means that the employer must assess what health and safety risks there are in the workplace, and specifically, what risks may be posed to pregnant women, women who are breastfeeding and women who have given birth in the past six months.

Where there is a health and safety risk in the workplace, the employer must take action to eliminate the risk by:

• Taking any legal action required, for example, ensuring that pregnant women do not come into contact with hazardous chemicals;

• altering your working conditions or hours of work so you are not put at risk, for example, a shop assistant could be given a chair so she does not have to stand for long periods. Other examples are, a person working at a computer could be given a more comfortable chair or more breaks and a woman whose job entails some lifting could have someone else do the lifting for her;

• if altering your working conditions or hours is not possible, the employer must consider offering you different work, at the same pay; and

• if offering you different work is not possible, your employer must suspend you on medical grounds.

Dismissal or discrimination because of pregnancy

If you are dismissed or treated unfairly because of pregnancy, you can make a claim for discrimination and unfair dismissal to an employment tribunal^[10] (Industrial Tribunal in Northern Ireland). It does not matter how long you have worked for your employer or whether you work full or part-time. This is because the law says that it is discrimination and automatically unfair to dismiss a woman because she is pregnant.

The effect of dismissal for pregnancy on other maternity rights

Dismissal because of pregnancy does not affect your entitlement to any of the other maternity rights. If you qualify for statutory maternity pay and for the right to return to work, you will still qualify if you are dismissed because you are pregnant.

Maternity leave

Most women employees have the right to take up to one year’s (52 weeks’) maternity leave. This does not depend on how long you have worked for your employer. (See Maternity section)