Expecting a child? Know your family friendly rights

Starting a family should be an exciting time in an employee’s life. However, it can also be a daunting experience in particular, when it comes to informing your employer that you are pregnant or that you would like to exercise your right to flexible working to help you juggle between family and work.

Khurram Ahmad, an employment solicitor at BPS Law LLP, summarises the number of rights that are entitled to parents in order to help them balance their working life.

1. Maternity leave and pay

All employees are entitled to maternity leave.

Ordinary maternity leave (OML) lasts for 26 weeks, which includes the 2 weeks of compulsory maternity leave the employee must take. To qualify, the employee would need to comply with certain ‘notification requirements’. These are, 1) that the employee must notify their employer no later than the end of the 15th week before the expected week of childbirth of the fact that she is pregnant, 2) the actual expected week of childbirth and, 3) the date she intends her OML to start (which must be a date no earlier than the beginning of the 11th week before the EWC).

An employee who qualifies for OML, will also qualify for a further 26 weeks ‘additional maternity leave’ (AML).

Unless their contract of employment says so, an employee is not entitled to their normal rate of pay during their maternity leave. Instead, employees may be eligible for statutory maternity pay (SMP), which lasts for a period of 39 weeks. SMP is payable at two different rates. For the first 6 weeks, at the ‘earnings-related rate’, which is 90% of the employee’s average weekly earnings (before tax). For the reminder 33 weeks, at either the ‘prescribed rate’ (currently at £138.18) or the earnings-related rate, whichever is lower.

In addition to the above rights, all pregnant employees have a statutory right to paid time off during working hours to attend ante-natal care classes.

2. Paternity leave and pay

Since 6 April 2003, fathers have been entitled to take either 1 whole week or 2 consecutive week’s ordinary paternity leave (OPL) within 56 days of their child’s birth. To qualify for this right, the father must have at least 26 weeks continuous service ending with the 15th week before the expected week of childbirth.

In addition to OPL, employees can ask for statutory additional paternity leave (APL) and pay if their partner returns to work before the end of their maternity leave or pay period. APL may last for between 2 and 26 weeks and must be taken at least 20 weeks after the birth of the child, but before the child’s 1st birthday.

Employees who are eligible for APL are entitled to receive statutory paternity pay which is £138.18 per week or 90% of their (gross) average weekly earnings, whichever is lower.

3. Parental leave

Parental leave is a form of statutory unpaid leave available to some working parents in addition to statutory maternity and paternity leave. It allows employees to take unpaid time off from work to care for their child or make arrangements for their child’s well-being. Employees can take leave in blocks of 1 week and up to a maximum of 4 weeks’ leave can be taken in any one year (which can be amended by the employer and employee).

In order to qualify for this right, employees must have been working for their employer for at least a year before making a request and must give their employer at least 21 days’ notice of their intention to take parental leave.

Unless an employee wishes to take parental leave immediately on the birth of their child, an employer is entitled to postpone an employee’s leave where it considers that the operation of its business would otherwise be unduly disrupted.

4. Time off for family and dependents

All employees, regardless of how long they have worked, are allowed to take a ‘reasonable amount’ of unpaid time off in the event of an emergency (e.g. if an employee’s childcare falls through). It’s hard to quantify ‘reasonable amount’ – it basically depends on the situation. However, the situation must involve a dependent who could be: a spouse, partner, child, grandchild, parent or someone who depends on you for care.

5. Flexible working

On 30 June 2014, the right to request flexible working was extended to all employees. Previously, the right only applied to parents of children under the age of 17 (or 18 if the child is disabled) and certain carers.

In essence, flexible working means a variation of the employee’s working pattern such as part-time working, flexitime, job sharing, shift working and home working.

To qualify for this right, the employee must have worked for the same employer for at least 26 weeks. Only one request can be made in any 12-month period. The procedure to be followed is far less prescriptive than that previously in force. The employee makes a written request setting out the change that they are seeking, when they want it to start, and explains what affect (if any) they think the flexible working would have on their employer. The employer must then notify the employee of the decision within 3 months of the request being made.

An employer should consider the request objectively and “in a reasonable manner”. They should meet with the employee to discuss their request as soon as possible and can only refuse a request on certain grounds for example, the burden of additional costs or detrimental effect on ability to meet customer demand.

For employees, the change is long overdue. Employees of all ages will now be able to ask their employer to alter the way they work, regardless of whether they have dependents or caring responsibilities. It may finally give them the flexibility that they need for example, to take time out to train, volunteer in a local community project, or simply avoid travelling at rush hour!

Future parental rights…shared parental leave

New provisions are expected to come into force next April (2015) which will introduce shared parental leave (SPL). Essentially, the new right will allow parents the option to share part of the leave which would be available to the mother. This could be up to 50 weeks of leave and 37 weeks of pay (which is paid at the rate of £138.18 a week or 90% of an employee’s average weekly earnings, whichever is lower). It will only apply to parents if their baby is due on or after 5 April 2015 or if they adopt a child on or after 5 April 2015.

By way of an example, a mother could end her maternity leave after 12 weeks, leaving 40 weeks (of the total 52 week entitlement) available for SPL. If both the mother and her partner are eligible, they can share the 40 weeks. They can even take the leave at the same time or separately. (The mother must take a minimum of 2 weeks maternity leave following the birth).

In order to qualify for SPL, the mother (or adoptive parent) must be eligible for either maternity leave or pay, maternity allowance or adoption leave or pay. The employee must also have worked for their employer continuously for at least 26 weeks by the end of the 15th week before the due date.

It can be argued that this additional family friendly right is long overdue, especially for newly fathers as it would provide them with further equal rights in terms of the amount of leave they are entitled to take following the birth of their new child.

Khurram Ahmad is an employment solicitor at Betesh Partnership Solicitors LLP and can be contacted on 0161 834 2623 or by email at khurram.ahmad@bpslaw.co.uk

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