Employees have several employment rights when it comes to taking periods of leave due to family reasons. This area of employment law can appear complex and daunting for managers for a fear of mishandling. In this hot topic, we look at all the family friendly entitlements available to employees, giving you the confidence and tools to support employees.
You can also watch our recent webinar on this topic On Demand.
Legislation for Family-Friendly Entitlements
There is a multitude of legislation to consider, including:
- Social Security Act 1989
- Employment Rights Act 1996
- Maternity and Parental Leave Regulations 1999
- Work and Families Act 2006
- Equality Act 2010
- Parental Leave (EU Directive) Regulations 2013 (as transposed into UK law)
- Children and Families Act 2014 and accompanying regulations
- The Shared Parental Leave Regulations 2014, the SharedParental Pay (General) Regulations 2014 and the Maternity and Adoption Leave (Curtailment of Statutory Rights to Leave) Regulations 2014
- Maternity and Parental Leave etc (Amendment) Regulations 2014
- Parental Bereavement (Leave and Pay) Act 2018
Employers also need to consider health and safety legislation (primarily in respect of maternity leave) as well as case law, which tells us how to interpret the law correctly in our working practices and ideally be aware of upcoming legislation which may make changes to the current rights or introduce new ones.
In this article we explore the current types of family friendly related leave which your employees may have a statutory entitlement to provided they meet the applicable eligibility criteria set out in law.
Adoption leave
Adoption leave entitles eligible employees to take up to a total of 52 weeks’ leave. It may be taken by employees regardless of their length of service, but to qualify the employee must be the adopter of a child aged up to 18 years and have notified the adoption agency that the child should be placed with them on the date of placement. Where a couple adopt a child jointly, only one person may take adoption leave and the other may take paternity leave or shared parental leave. Pay is dependent on meeting certain eligibility criteria.
Individuals are also entitled to take paid time off to attend a certain number of pre-placement appointments, depending on whether they are the primary or secondary adopter. The rights to statutory adoption leave (and pay) are also extended to surrogate parents who meet the criteria to apply for a Parental Order and to individuals fostering a child under the ‘Fostering for Adoption’ scheme run by local authorities, if they meet the other qualifying criteria that apply to this form of leave.
Maternity leave
Maternity leave entitles pregnant employees to take up to a total of 52 weeks leave, regardless of their length of service. Maternity leave may not begin earlier than the beginning of the 11th week before the expected week of childbirth (unless the employee gives birth prematurely). Pay is dependent on meeting certain eligibility criteria. Pregnant employees are entitled to take paid time off to attend ante-natal care and qualifying employees are entitled to unpaid time off on two occasions to accompany a pregnant person to ante-natal such ante-natal appointments.
In the deeply tragic event a baby is either stillborn after 24 weeks of pregnancy or born alive at any point of the pregnancy and then dies, employees who met the eligibility conditions may still take maternity leave. See also; Parental Bereavement Leave below.
Parental leave
Parental leave provides all employees and agency workers the right to take unpaid time off, subject to meeting the statutory eligibility requirements. They must have been continuously employed for one year and expect to have parental responsibility for the child who is under 18 years of age.
Parental leave gives up to 18 weeks unpaid parental leave for each child. A maximum of four weeks’ leave may be taken, per child, each year. Part-time employees have a pro-rata entitlement. Employers may ask for up to 21 days’ notice before the date on which the leave is to commence. Leave is to be taken in blocks of one week at a time except for the parents of disabled children who may take leave in multiples of a day.
Parental bereavement leave
Parental bereavement leave is a relatively new statutory right, which came into effect in April 2020. It entitles all employees who are bereaved parents to a minimum of two weeks’ leave if they lose a child under the age of 18 or suffer a stillbirth from 24 weeks of pregnancy. This is a day one right so applies regardless of length of service. Pay is dependent on meeting certain eligibility criteria.
The focus is more on who has responsibility as the primary carer and less on the legal status between the adult and the child. The entitlement is also therefore available to adults with parental responsibility who are: adoptive parents, individuals who are fostering to adopt, legal guardians and most foster parents
Paternity leave
Paternity leave entitles eligible employees to take up to two week’s leave to take time off to look after the child. Leave can be taken either as one single week’s leave or two consecutive weeks’ leave. It must be taken any time up to eight weeks after the date of birth (or placement with the new adoptive parents for adoption within the UK, or date of entry into the UK for overseas adoptions). The leave may not be taken as odd days off work. Pay is dependent on meeting certain eligibility criteria.
The employee must be either: the biological or secondary adoptive parent of a child born or placed with them for adoption, or the partner of the mother, or the intended parent (if the baby is born through a surrogacy arrangement). They must also have a minimum of 26 week’s continuous service at the 15th week before the expected week of childbirth or matching week (for adoptions in the UK) and they must give the required notice.
Shared parental leave
Shared parental leave may be taken if the employee who is on either maternity or adoption leave opts to end this early and convert it into shared parental leave instead. Employees may choose to opt into shared parental leave at any time, provided there is still some untaken maternity/adoption leave left to share. They may then share the remaining leave with another person who has caring responsibility for the child.
Employees on maternity or adoption leave must take the first two weeks of compulsory leave (four weeks of compulsory maternity leave in the case of factory workers). They may then share up to 50 weeks of shared parental leave.
Time-off for dependants
Time off for dependants entitles employees, regardless of length of service, to take a ‘reasonable’ amount of unpaid time off to take action which is necessary to deal with an unexpected or sudden event affecting a dependant.
It may be used to provide immediate assistance when either:
- A dependant falls ill, gives birth or is injured or assaulted
- To make necessary longer-term arrangements for the care of a dependant who is ill or injured
- In consequence of the death of a dependent (to make immediate arrangements only, it is not there as compassionate leave for emotional support with bereavement)
- Care arrangements unexpectedly cease or are disrupted
- To deal with an unexpected incident involving a child of the employee whilst at school or an educational establishment.
Future statutory leave entitlements
New statutory leave entitlements are due to be introduced for employees in the near future, although a date has not yet been confirmed. These are:
- Carer’s leave: A statutory entitlement to time off work for all eligible employees regardless of their profession. It is there for those individuals who also have caring responsibilities in their private lives.
- Neonatal leave is expected to be introduced in 2023 to support families when a baby is born prematurely or sick and receives care in a neonatal unit.
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