There’s been quite a lot going on in the news recently about family friendly rights particularly with the introduction of shared parental leave and the changes to adoption leave.
Are you aware of the family friendly rights available to your staff?
It can be a bit of a minefield and to help prepare you going forward we have set out details of the rights available below:
1. Maternity Leave
A pregnant employee has the right to both 26 weeks of ordinary maternity leave as well as 26 weeks of additional maternity leave. To qualify for maternity leave, an employee must tell you by the end of the 15th weeks before the expected week of childbirth:
- that she is pregnant
- the expected week of childbirth, by means of a medical certificate if requested.
- the date she intends to start maternity leave. This can normally be any date which is no earlier than the beginning of the 11th week before the expected week of childbirth up to the birth.
Statutory maternity pay (SMP) will be payable if the employee has been employed continuously for at least 26 weeks ending with the 15th week before the expected week of childbirth, and has an average weekly earnings at least equal to the lower earnings limit (which is currently £112) for National Insurance contributions. SMP is payable for 39 weeks; for the first six weeks it is paid at 90 percent of the average weekly earnings . The following 33 weeks will be paid at the SMP rate or 90 per cent of the average weekly earnings whichever is the lower. The SMP rate from April 2015 is £139.58 per week. The standard rate for SMP is reviewed every April.
2. Paternity Leave
If your employee is to become a father or will share the responsibility with a partner for bringing up a child, they may have the right to Statutory Paternity Leave and Pay. This includes those who are adopting a child.
Paternity leave is available to employees who:
- have or expect to have responsibility for the child's upbringing
- are the biological father of the child or the mother's husband or partner (including same sex relationships)
- have worked continuously for you for 26 weeks ending with the 15th week before the baby is due or the end of the week in which the child's adopter is notified of being matched with the child
- give the correct notice
Employees should tell you as soon as possible that they wish to take paternity leave, but no later than the end of the 15th week before the expected week of childbirth. They should say when the baby is due, if they're going to take one or two weeks off, and when they expect their paternity leave to start. Those who are eligible can choose to take either one week or two consecutive weeks' paid paternity leave (not odd days).
Employees will need to take their paternity leave within 56 days of the actual date of birth of the child. Paternity leave cannot start until the birth of the baby; employees may be able to take some annual leave before.
To qualify for statutory paternity pay, an employee must:
- have worked continuously for you for at least 26 weeks by the end of the 15th week before the expected week of childbirth
- be employed by you up to the date the child is born (or placed with the adopter)
- earn at least £112 presently (before tax)
- give the correct notice
- be taking time off to look after the child or their partner
If they are adopting the criteria is:
- have worked for you continuously for at least 26 weeks by the end of the week they were matched with a child (UK adoptions).
- have worked for you continuously for at least 26 weeks by either the date the child arrives in the UK or when they want their pay to start (overseas adoptions).
- confirm that their partner is getting Statutory Adoption Pay in writing or by giving you a copy of their partner's form SC6.
- meet the other eligibility conditions for paternity leave or pay
3. Adoption Appointments and Adoption Leave
From the 5th April 2015, the main adopter will be able to take paid time off for up to five adoption appointments. The secondary adopter will be entitled to take unpaid time off for up to two appointments.
Also from 5th April 2015, Adoption leave became a "day one" right meaning there is no qualifying period for this right.
In addition Statutory Adoption Pay is now in line with maternity pay with the first six weeks being paid at 90% of the employee's normal earnings.
Adoption leave may be taken:
- when a child starts living with the employee or up to 14 days before the placement date (UK adoptions).
- When an employee has been matched with a child by a UK adoption agency.
- When the child arrives in the UK or within 28 days (overseas adoption).
Employees should tell you within seven days of being told that they have been matched with a child, if this is not possible they must tell you as soon as possible.
To get Statutory Adoption Pay an employee must:
- have worked continuously for at least 26 weeks by the week they were matched with a child
- earn on average at least £112 a week presently (before tax)
- give the correct notice
- give proof of the adoption or surrogacy
From April 2015 the rate of statutory adoption pay is £139.58 per week, for the first six weeks the employee will be entitled to 90% of their normal earnings. The following 33 weeks will be paid at the statutory adoption pay rate.
4. Shared Parental Leave (SPL) and pay
This was introduced on 1 December 2014 and will be available to couples with babies due, or children placed for adoption, on or after 5 April 2015. It will effectively allow parents, who qualify for shared parental leave, greater flexibility in caring arrangements and an opportunity to consider the best arrangement to care for their child during the child’s first year.
The amount of leave available is calculated using the mother’s entitlement to maternity/adoption leave, which allows them to take up to 52 weeks’ leave (although the mother must take at least two weeks maternity leave following the birth of her child). If they reduce their maternity/adoption leave entitlement then they and/or their partner may opt-in to the SPL system and take any remaining weeks as SPL. A partner for the purposes of SPL is the child’s biological father or the partner of the mother/adopter. This can be a spouse, civil partner; or a partner living in an enduring relationship with the mother and the child.
Unlike maternity/adoption leave, eligible employees can stop and start their SPL and return to work between periods of leave with each eligible parent able to submit three notices booking periods of leave (although an employer may allow more).
Parents must be eligible in order to qualify for shared parental leave and briefly the criteria is:
To trigger the right to SPL for one or both parents, the mother must:
- have a partner
- be entitled to either maternity/adoption leave or statutory maternity/adoption pay or maternity allowance
- have curtailed, or given notice to reduce, their maternity/adoption leave, or their pay/allowance (if not eligible for maternity/adoption leave).
A parent intending to take SPL must:
- Be an employee
- Share the primary responsibility for the child with the other parent at the time of the birth or placement for adoption
- Have properly notified their employer of their entitlement and have provided the necessary declarations and evidence.
In addition, a parent wanting to take SPL is required to satisfy the “continuity of employment test” and their partner must meet the “employment and earnings test”.
It is up to the employee to ensure that they meet the eligibility criteria.
It will be beneficial to have early conversations with applicable employees regarding their intentions, enabling both you and the employee to be clear regarding the entitlement, what leave arrangements are being considered and how any leave will be accommodated.
To ensure consistency in making and responding to notifications regarding SPL it will be a good idea f to set out working arrangements and employees’ rights in a SPL policy. This can either be a standalone policy or be included within a wider maternity and paternity policy.
5. Antenatal Appointments
Employers must give pregnant employees time off for antenatal care and pay their normal rate for this time off.
From 1 October 2014, the father or pregnant woman’s partner has the right to unpaid time off work to attend two antenatal appointments, capped at 6.5 hours per appointment.
6. Flexible Working
From 30 June 2014 every employee has the statutory right to request flexible working after 26 weeks service.
Requests by an employee should be in writing stating the date of the request and whether any previous application has been made and the date of that application.
Once a request has been received you should arrange a meeting to discuss the request, this is not a statutory requirement but is good practice.
The law requires the process to be completed within three months of the request being received, this includes any appeals.
Any request that is accepted will make a permanent change to the employment contract.
Employees can only make one request in any 12 month period.
You should consider requests in a reasonable manner and can only refuse them if there is a business reasons for doing so, this reason must be from the following list:
- the burden of additional costs
- an inability to reorganise work amongst existing staff
- an inability to recruit additional staff
- a detrimental impact on quality
- a detrimental impact on performance
- a detrimental effect on ability to meet customer demand
- insufficient work for the periods the employee proposes to work
- a planned structural changes to the business
7. Emergency time off for dependents
All employees have the right to time off during working hours for dependants, this time off is intended to deal with unforeseen matters and emergencies. There is no legal right to be paid; however some employers may offer a contractual right to pay under the terms and conditions of employment.
A dependant could be a spouse, partner, child parent, or someone who depends on an employee for care, for example an elderly neighbour.
The leave can be taken for example:
- to deal with a breakdown in childcare
- to put longer term care in place for children or elderly relatives
- if a dependant fall ill or is taken into hospital
- to arrange or attend a funeral.
The right is to a reasonable amount of time off, although it is not stated how much is reasonable. In most cases a day or two will be sufficient to deal with the immediate crisis. The employee must tell you as soon as possible the reason for the absence and how long they expect to be absent
8. Parental Leave
This is distinct and separate to Shared Parental Leave.
Parental leave is for employees to take time off work to look after a child's welfare, this leave is normally unpaid, and is available for each child up to their 18th birthday.
Employees must have completed one year's service with an employer to qualify for this right.
18 weeks unpaid leave can be taken for each child, up to their 18th birthday. The Limit on how much parental leave each parent can take in a year is 4 weeks for each child (unless the employer agrees otherwise).
The leave can start once the child is born or placed for adoption, or as soon as the employee has completed a year's service, whichever is later. Employees can take it at any time up to the child's 18th birthday.
A request for parental leave should be made by the employee giving 21 days’ notice of the start date of the parental leave, you may ask for this to be in writing. As long as the employee qualifies for parental leave and gives you the correct notice the employee should be able to take parental leave at any time.
We hope you find this guide useful and as ever if you do have any employment related queries please do not hesitate to contact either Caroline Acton or Marie Walsh on 0113 357 1315 or email@example.com or firstname.lastname@example.org
Caroline & Marie
Consilia Legal LLP
Please note that the information and any commentary on the law contained in this document is provided free of charge for information purposes only. Every reasonable effort is made to make the information and commentary accurate and up to date, but no responsibility for its accuracy and correctness, or for any consequences of relying on it, is assumed by the author, the publisher or Consilia Legal LLP.
The information and commentary does not, and is not intended to, amount to legal advice to any person on a specific case or matter.