Existing Family-Friendly Employment Rights
Maternity Leave – pregnant employees are entitled to 52 weeks maternity leave and, subject to eligibility conditions, 39 weeks statutory maternity pay (“SMP”). SMP is paid at the following rates:
- First 6 weeks – at the rate of 90% of the employee’s normal weekly earnings.
- Remaining 33 weeks – at the lower of (i) the statutory rate (currently £138.18 per week, increasing to £139.58 from 5 April 2015) or (ii) 90% of the employee’s normal weekly earnings.
Employees on maternity leave have protected rights in relation to returning to their job after maternity leave and to receive contractual benefits (except remuneration) during maternity leave. They may agree with their employer up to 10 keeping in touch (“KIT”) days during maternity leave whereby they can work or carry out work related activity (e.g. training) without the period of maternity leave coming to an end. Employees are protected during pregnancy and maternity leave from dismissal or suffering any detriment for exercising their statutory rights. In addition, expectant mothers have the right to paid time off to attend ante-natal appointments.
Adoption Leave – employees who are the primary adopter in a couple have very similar rights to employees entitled to maternity leave. Adoption leave also lasts 52 weeks with 39 weeks statutory adoption pay (“SAP”). From April 2015, there will no longer be a qualifying service requirement for adoption leave which, like maternity leave, will become a day one right. Also from April 2015, SAP will be aligned with SMP so that employees receive SAP at the rate of 90% of their normal weekly earnings for the first 6 weeks. Previously all SAP was paid at the statutory rate (or 90% of normal weekly earnings if lower).
From April 2015, a new right to time off for 5 pre-adoption appointments is being introduced for employees.
The rights for employees taking adoption leave to return to work, contractual benefits, KIT days and protection against dismissal and detriment mirror the rights for maternity leave.
Paternity Leave – employee partners of expectant mothers or primary adopters with qualifying service can take 1 or 2 weeks paternity leave within the 56 day period from birth or placement. If eligible, statutory paternity pay is paid at the statutory rate (or 90% of normal weekly earnings if lower). In addition, if the mother curtails her right to maternity leave and returns to work then the partner can take up to a further 26 weeks additional paternity leave (“APL”) paid at the statutory rate. Similar rights apply regarding returning to work, contractual benefits, KIT days and protection against dismissal and detriment as applies to maternity and adoption leave.
From April 2015, with the introduction of shared parental leave, APL is being abolished. To ascertain whether the old or new regime will apply, the key point will be to clarify whether the child is due to be born or placed for adoption (i) before or (ii) on/after 5 April 2015. The new regime applies to the latter.
(Unpaid) Parental Leave – not to be confused with the new shared parental leave right is the existing right to take unpaid parental leave. This right enables birth or adoptive parents (or anyone with parental responsibility) to take up to 18 weeks unpaid leave to care for a child during the period up to the child’s 5th birthday (or during the 5 years from placement in adoption cases) or 18th birthday for disabled children.
The right includes protection around return to work, contractual benefits during leave and detriment/dismissal.
From April 2015, the scheme for unpaid parental leave will be changed so that the leave can be taken up to the child’s 18th birthday in all cases (not just in the case of disabled children).
Flexible Working – employees with 6 months qualifying service have the right to request flexible working (e.g. to move to part-time work or working from home). Employers can refuse requests for flexible working where they can show at least one of several business grounds for refusal listed in the Employment Rights Act 1996. In practice, employers have a good deal of discretion to resist agreeing flexible working requests although they must be careful to act consistently and not to unlawfully discriminate. Flexible working requests must be dealt with by employers within 3 months of receipt including any appeal. Previously, only employees with caring responsibilities had the right to request flexible working but this was extended to all employees (with the requisite service) from June 2014.
If you have any queries about the above or on any employment related legal issues, please contact David Seals, either by telephone on 01306 502218 or by email:.firstname.lastname@example.org or your usual Downs employment contact.