All pregnant employees and new mothers (regardless of length of service and hours worked) are entitled to paid time off for anti-natal care, normal sick rights for pregnancy related sickness and 52 weeks maternity leave. General health and safety laws have implications in relation to women who are or have been pregnant, within the last six months. Rest facilities, non smoking zone etc. will be required.
Maternity leave is made up of 26 weeks ordinary maternity leave (OML) and 26 weeks additional maternity leave (AML) with no gap between. Women on OML are entitled to normal contractual benefits (e.g. accrual of holidays) and are entitled to return to their job.
Women on AML are entitled to benefit from the general rights in relation to notice, redundancy, disciplinary and grievance procedures. The have a right to return to the same job or if this is not practically possible, to a similar job on terms that are no less favourable. The right is to return to the same job or if this is not reasonably practicable for the employer, to permit her to do a job that is both suitable for her and appropriate for her in the circumstances .
Employees with 26 weeks’, either full or part time, continuous service are entitled to statutory maternity pay (SMP). Women who do not qualify may be entitled to maternity allowance. SMP is paid during maternity leave. It is payable at the rate of 90% of the woman’s average weekly earnings in the first 6 weeks.
A further 33 weeks are paid at the standard rate set by the Government which is £145.18 (2018) per week or 90% of average weekly earnings whichever is the lower. Employers can generally recover 92% of SMP payments or more. The SMP can be recovered by deduction from PAYE and National Insurance Payments.
There are certain formalities in connection with return to work. The employee does not have to give notice if she intends to return to work at the end of leave. If she wants to return before the expiry of her leave or change any previous notification, she must give eight weeks’ notice. The employee may not work for the first two weeks after the baby is born (four weeks in the case of a factory). If the employee does not wish to return on the expiry of maternity leave she must give notice required by the contract.
Paternity, Adoption etc. Leave & Pay
A father may take leave because his partner is having a baby, adopting a child or having a baby through a surrogacy arrangement. He might be eligible for:
- 1 or 2 weeks’ paid Paternity Leave
- Paternity Pay
- Shared Parental Leave and Pay
Employment rights are preserved.
Fathers who have 26 weeks’ service by the 15th week before the expected date of childbirth are entitled to 2 weeks paternity leave in or around the date the child is born. This also applies to the mother’s partner who is expected to have responsibility for the upbringing of the child.
A father can get time off to accompany his partner (or the surrogate mother) to 2 antenatal appointments. If adopting a child, he can get time off to attend 2 adoption appointments after you’ve been matched with a child.
There are similar rights in connection with adoption leave. A couple can decide which partner takes the adoption leave. Most employees who qualify for adoption leave would also be entitled to statutory adoption pay.
SAP is paid for 39 weeks at £145.18 (2018) per week or 90% of average earnings whichever is the less. Employer’s can recover 92% of the payments and in certain circumstances 104.5% of the payments.
Most employees will be entitled to statutory paternity pay provided they have qualifying National Insurance payments. 28 days’ notice is generally required. SPP is at the rate of £145.18 (2018) per week or 90% of earnings, whichever is lower. Employers can recover 92% of the payments but if total NI payments are less than £45,000 per year the employer can recover 104.5% of the payments and costs.
There are two rights ordinary paternity leave and additional paternity leave. To qualify for additional paternity leave which is up to 26 weeks, the same qualifications as apply for ordinary paternity leave apply.
In addition, the father must have certain minimum earnings. The child’s mother must have been entitled to statutory maternity leave pay allowance or statutory adoption leave or pay. She must have started working again. In effect the mother and father may divide the 26 weeks statutory and other rights continue.
The rate of statutory pay is £145.18 (2018) or 90% of average weekly earnings if less.
Employees with more than one year’s service are entitled to up to 18 weeks unpaid parental leave for each child. This can be added to normal maternity, paternity or adoption leave. It must be taken in blocks or multiples of one week. It can be taken any time before the child’s 18th birthday. 21 days notice is required. The employer may not refuse to permit the employee to take time off. In certain circumstances may postpone leave.
There is a fall back scheme for parental leave, if alternative formal agreements with employees cannot be reached. Under the Scheme employees can take a maximum of 4 weeks leave in each year in respect of any individual child; parents must give 21 day’s notice and employers can postpone the leave for up to 6 months for business reasons.
Employees taking parental leave have the right to return to the same job. If this is not possible, a job on similar or better terms may be offered. Employees must not be dismissed while taking parental leave.
Employees qualify if all of these apply:
- employed for more than a year
- named on the child’s birth or adoption certificate or they have or expect to have parental responsibility
- not self-employed or a ‘worker’, eg an agency worker or contractor
- not a foster parent (unless they’ve secured parental responsibility through the courts)
- the child is under 18
Employers can ask for proof (like a birth certificate) as long as it’s reasonable to do so, eg they can’t ask for proof each time an employee requests leave.
Force Majeure Leave
Employees have a right to reasonable unpaid time off to deal with an emergency involving a dependent. A dependent may be a spouse, partner, child or parent who lives with the employee. Leave can be taken when a dependent falls ill, is injured or assaulted, suffers from mental illness or injury or goes into labour. It can be taken taken to make arrangements for care for a dependent who is ill. It can be taken in consequence of a death.
It may also be taken when they need to:-
- make longer term care arrangements for a dependent;
- arrange to attend a dependent’s funeral;
- deal with unexpected problem in care arrangement;
- deal with an incident involving a child during school hours.
The employee must tell his employer of the reason for his absence as soon as practicable. Unless it cannot be confirmed until he returns to work, he must tell his employer for how long he expects to be absent.
The right to reasonable time off; the length of time is not fixed.
There is no minimum qualification period.
Employees who think they have been unreasonably refused time off or have suffered for taking time off may claim to an Employment Tribunal. The claim must be taken within three months.
The right is separate to equality rights and the right to request flexible working arrangements.
Flexible Employment Request
An employee may request changes in working patterns if he qualifies as follows
- employed with at 26 weeks’ service
- child under 16
- employee expected have responsibility for the child’s upbringing
- request as to enable the employee to care for the child
- the employee is the father mother guardian, carer foster parent or married to or the partner of such a person
- no previous application made with the preceding 12 months
The application must be made in writing. The employer must give serious consideration to it. It may be refused on the basis of cost, detrimental consequences on other staff, or structural changes.
An employee who is unreasonably refused may apply to the employment tribunal. The employment tribunal may order the employer to reconsider the request. They grant compensation eight weeks pay up to the statutory maximum per week (revised each February).
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