Being a working parent? a guide for employers and employees
Introduction
This article is based on a number of Acts and regulations, including the Health and Safety at Work Act, the Equal Treatment Act, and regulations regarding maternity pay.
It will be essential reading if you are an employer or employee; additionally if you are have an interest in health and safety or discriminatory matters.
Pregnant employees
It is unlawful to treat women less favourably on the grounds of pregnancy or maternity leave. You have to make it clear to employees that it could be unlawful if they act in a way that could be offensive to another person, violate their dignity or create a hostile environment.
All pregnant employees - regardless of length of service or the hours they work - are entitled to:
Paid time off for ante-natal care;
Normal sick pay rights for pregnancy-related sickness;
At least 26 weeks' maternity leave - Ordinary Maternity Leave.
All pregnant employees and those on Ordinary Maternity Leave are entitled to:
Their normal contractual benefits, e.g. accrual of contractual holiday entitlement;
The right to return to the same job.
Amendments to the Sex Discrimination Act, which came into force on 1 October 2005, made it unlawful to treat women less favourably on the grounds of pregnancy or maternity leave. Previously unfavourable treatment was not explicitly set out in sex discrimination legislation.
Additional Maternity Leave
Some mothers qualify for Additional Maternity Leave as well as Ordinary Maternity Leave.
To qualify they must have at least 26 weeks' service (full or part-time) by the end of the 15th week (the qualifying week) before the Expected Week of Childbirth (EWC).
Women with this service can take up to another 26 weeks' leave, starting at the end of Ordinary Maternity Leave. Additional Maternity Leave is unpaid.
A woman who has taken additional maternity leave has the right to return to the same job, or if that is not reasonably practical, to a similar job.
Health and safety of new and expectant mothers
Employers have a legal duty to ensure that expectant or new mothers are safe at work.
You must carry out a health and safety risk assessment that covers all women of childbearing age, particularly those who:
Are pregnant;
Have given birth in the last six months;
Are breastfeeding.
If this isn't possible, you must suspend the woman on full pay for as long as the risk remains.
Rest facilities
You're required by law to provide somewhere for pregnant and breastfeeding mothers to rest. This should be a smoke-free area. It's also good practice to provide a private room for nursing mothers to express and store breast milk. Toilet facilities are not suitable.
Maternity pay
Most employees who qualify for Additional Maternity Leave also qualify for Statutory Maternity Pay (SMP). Women who don't may be able to claim Maternity Allowance.
In order to qualify for SMP employees must have average earnings which are no lower than the lower earnings limit which applies to National Insurance.
SMP is paid during Ordinary Maternity Leave or if the employee has resigned after the start of the fifteenth week before the baby is due. It is payable at a rate of 90 per cent of average earnings for the first six weeks. The remaining 20 weeks are paid at the standard rate set by the government, which is £106 per week, increasing to £108.85 per week from April 2006, or 90 per cent of the woman's average weekly earnings, whichever is lower.
Employers can recover 92 per cent of payments but if your total National Insurance payments are less than £45,000 per year you can recover 104.5 per cent to cover payments and other costs. You can recover SMP by deducting it from payments you make to HM Revenue & Customs (HMRC) for PAYE and National Insurance. You can also get funding in advance for payments of SMP from HMRC.
The government intends to extend paid maternity leave to 39 weeks by April 2007.
Returning to work after maternity leave
All employees on Ordinary Maternity Leave - regardless of their length of service, or the hours they work - are entitled to return to the same job and the same contract, as if they had not been away.
Employees who decide to take Additional Maternity Leave are entitled to return to the same job but if this is not practical, to a suitable alternative.
There are certain rights and obligations concerning an employee's return to work following maternity leave:
You must write to the employee confirming her return to work date within 28 days of her informing you of when she plans to begin her maternity leave;
An employee doesn't have to give you notice if she intends to return to work at the end of her maternity leave but if she wants to return before the expiry of her leave she must give 28 days' notice;
The employee can't return for at least two weeks after the baby is born - four if she works in a factory;
If an employee can't return to work at the end of the leave because she's ill, you should treat this as normal sickness absence;
If an employee does not want to return to work on the expiry of her maternity leave she must give the period of notice required by her contract of employment.
Paternity pay
Fathers, who have 26 weeks' service by the 15th week before the Expected Week of Childbirth (EWC), are entitled to two weeks' paternity leave at or around the date the child is born. An employee may also take paternity leave if they are not the father but are the mother’s partner and expect to have responsibility for the child’s upbringing.
Where a child is adopted, one member of a couple may receive Statutory Adoption Pay and the other Statutory Paternity Pay if they have twenty-six weeks’ service by the time the adopter is told they have been matched with a child for adoption.
During paternity leave, most employees are entitled to Statutory Paternity Pay (SPP). Employees must earn enough to pay National Insurance to qualify for SPP. Low-paid employees and those who don't qualify for SPP may be able to get Income Support.
Employees must give you 28 days' notice of when they want their SPP to start. They should tell you that they will be taking paternity leave by the fifteenth week before the baby is due.
SPP is paid at a rate of £106 per week or 90 per cent of weekly earnings, increasing to £108.85 per week from April 2006, whichever is lower.
For employers seeking to recover the costs of SPP, the same rules apply as to SMP above.
Parental leave
Employees with at least one year of service are entitled to 13 weeks' unpaid parental leave for each child, which can be taken before their child is five, and if agreed can be added to normal maternity, paternity or adoption leave.
Disabled children
Parents of children entitled to a disability living allowance can take up to 18 weeks unpaid leave until the child's 18th birthday. This applies irrespective of when the child was born, and the parents can take their leave as single days.
Adopted children
Parents of adopted children are entitled to take 13 weeks' of unpaid parental leave (provided that they have at least one years' service), up to five years following the placement or up to the child's 18th birthday if that is sooner.
Employees taking parental leave have the right:
To return to the same job where leave is less than four weeks - if this is not possible, with longer periods, you may offer a job with similar or better terms and conditions;
Not to be dismissed for taking parental leave;
To some of their normal terms and conditions, but many contractual rights can be suspended.
Time off for dependants
All employees have the right to a reasonable amount of unpaid time off to deal with an emergency involving a dependant. A dependant is a spouse, partner, child or parent or a person who lives with the employee (but not a lodger). In some circumstances it could also be someone else who reasonably relies on the employee for care, e.g. an elderly neighbour.
Employees can take leave when:
A dependant falls ill, or is injured or assaulted - including mental illness or injury, e.g. emotional distress;
A dependant goes into labour;
Or when they need to;
Make longer-term care arrangements for a dependant who is ill or injured;
Arrange or attend a dependant's funeral;
Deal with an unexpected problem in care arrangements, e.g. if a childminder is unexpectedly unavailable;
Deal with an incident involving the employee's child during school hours, e.g. suspension from school.
How much time off can an employee take?
The right is to reasonable time off. This amount of time isn't fixed - it should simply allow the employee to deal with the immediate problem and put any other necessary care arrangements in place. For example, an employee would not normally be able to take two weeks off to care for a sick child, but they could take one or two days to take the child to the doctor and arrange for someone else to look after him or her.
Refusing time off Employees who think that you have unreasonably refused to give them time off, or feel they have suffered for taking time off, can make a claim to an employment tribunal.
It would also be an unfair dismissal if you were to dismiss or make an employee redundant for taking - or trying to take - time off in this way.
If by chance you find some error of law or fact in any Net Lawman information page, do please tell us. We should also welcome your suggestions for new subjects for information pages. These notes:
Do not provide a complete or authoritative statement of the law;
Do not constitute legal advice by Net Lawman;
Do not create a contractual relationship;
Do not form part of any other advice, whether paid or free.
