This comprehensive guide covers all aspects of family leave, including maternity leave, paternity leave, shared parental leave and adoption leave.
Employers must understand when each type of leave applies and the distinctions between them. Each type of leave listed here involves a specific range of statutory rights and legal responsibilities for employers to meet. Failure to do so may easily result in an employment tribunal further down the line.
Although basic detail on leave entitlement, statutory pay and length of absence may be outlined in the company handbook, an ongoing dialogue between employer and employee is necessary to ensure that both parties are fully aware of their rights and responsibilities at each stage.
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Women have a statutory right to take up to 52 weeks’ leave from work in order to have and provide immediate care for a baby.
It is important to be aware that maternity leave in this instance only applies to biological mothers.This law protects the health and safety of new mothers and also allows time for a crucial bond to form between mother and child during the early stages of development.
The earliest start date for maternity leave is 11 weeks before the expected birth date. In some cases, maternity leave may also start automatically in the event of premature birth or pregnancy-related illness in the four weeks prior to the due date.
It would be an illegal offence for an employer to allow a woman to return to work within the first two weeks following birth, or four weeks if her role involves factory work.
Maternity leave entitlement is classed as separate to an employee’s standard annual leave entitlement, which means employees remain entitled to holiday leave throughout their maternity leave. Not allowing the employee to carry over untaken holiday leave is a discriminatory offence.
Statutory maternity pay
Employers must pay SMP for a maximum of 39 weeks to eligible employees. SMP is currently set at 90% of the employee’s average weekly earnings (uncapped) for the first six weeks, and then £140.98 or 90% of the employee’s average weekly earnings for the following 33 weeks (whichever is lower).
This reduction may discourage some women from taking their full maternity leave entitlement in favour of returning to work sooner.
Businesses can reclaim either 92% or 103% of SMP paid depending on the amount of National Insurance contributions paid by both the employer and employee.
Employees must inform their employer in writing 15 weeks before their due date that they are pregnant and intend to use maternity leave. They must provide medical evidence of the due date and specify when they will begin their leave and statutory maternity pay.
It is also necessary for the employee to provide notice of at least eight weeks if they decide to return to work earlier than the end of their maternity leave, but the absolute minimum amount of maternity leave they can take is two weeks.
Health, safety and risk assessment
With health and safety in mind, a risk assessment must be carried out for all pregnant women to see if there are any health and safety hazards posed in their normal role.
If hazards are identified, measures must be taken to eliminate them and, if the employee is unable to perform her usual job, an alternative role must be sought. If there is no alternative work, then the employee must be placed on maternity suspension on full pay.
The employer must not discriminate against employees on the grounds of maternity in any way.
This includes dismissing an employee because they become pregnant, but also preventing hiring or promotion opportunities just because the woman is of childbearing age.
The standard length of maternity leave means that employers could be without a key employee for a substantial amount of time. During this time, the employer is expected to arrange cover and must generally ensure the employee is able to return to their work following maternity leave.
As above, if a pregnant employee is unable to complete her usual role following a risk assessment, the employer must seek to find an alternative role for the employee that they are able to fulfill. If an alternative role is not possible, the employer must place the employee on full-paid maternity suspension.
Temporary staff are a common solution to the challenge, however employers must be aware of the rights of temporary staff and be sure not to fall foul of the law when employing workers on a short-term basis. Staff on fixed-term contracts must not be treated less favourably than permanent employees carrying out the same role.
Keeping in touch days
‘Keeping in touch days’ (KIT days) apply to maternity leave and adoption leave.
When your employees are away on pregnancy-related leave it can be helpful to stay in touch. As an employer you are entitled to make reasonable contact with your employee during their leave. This could be to provide updates on workplace developments, promotion opportunities and so on.
Your employee has the right to work up to 10 keeping in touch days during their leave without losing their entitlement to statutory maternity or adoption pay, or ending their leave. Working KIT days must be agreed; the employee cannot be forced to work during maternity or adoption leave.
This can be a helpful way to ease an employee back to work, but only if both the employer and employee agree on the nature of work and how much the employee will be paid.
Return to work
If the employee returns to work within 26 weeks, they have the legal right to resume their previous job role. If the employee is on leave for longer than 26 weeks and business circumstances change during that time, the employer must still ensure the employee is able to return to another role of equal seniority under the same terms and conditions of employment.
In this case of the latter, additional time for training and development is expected in order to bring the employee up to speed in their new role. Employees must give their employer at least 8 weeks’ notice if they intend to change their return to work date.
Employers should also be aware that women who return from maternity leave may submit a request for flexible working. This enables new mothers to adjust their schedule in order to provide care for their child, and often reduces the amount of days and hours worked per week.
The Acas guidelines
For employers that are looking to cement their understanding of maternity leave best practice, it’s also worth reviewing the Acas guidelines on this topic. Acas provide useful advice on a range of factors relating to maternity leave, particularly statutory maternity pay, standard employee rights and antenatal care. This is very important to prevent any potential issues arising at each stage of the maternity leave timeline.
If you are looking for further professional support on the employment law challenges that maternity leave can present, Peninsula are on hand to provide around the clock support for your business.
Qualifying employees are entitled to two weeks’ paternity leave which can be taken as one week or two weeks, though not separately.
Unlike maternity leave, this does not apply before the birth. To be eligible for paternity leave, the employee must meet one of the following conditions:
Be the biological parent of the child
Be the husband or partner of the mother
Be the child’s adopter
Be the intended parent in a surrogacy arrangement
Similarly, only employees who have given notice and worked for their employer for at least 26 weeks continuously by the end of the 15th week before the expected week of childbirth qualify for paternity leave.
In addition to the one or two weeks’ paternity leave, eligible employees can also share the mother’s unused maternity leave as shared parental leave.
Statutory paternity pay
Since April 2013, statutory paternity pay is set at £140.98 per week or 90% of weekly earnings, whichever is lower – for a maximum of two weeks.
As of April 2015, shared parental leave (SPL) entitles eligible mothers and partners to share their leave entitlement following birth or adoption.
Shared parental leave gives parents greater flexibility when deciding the best arrangement to care for a new addition to their family, whether that’s sharing leave at the same time or separately in turn.
Both employers and employees must confirm that specific notification and eligibility requirements are met before approving SPL. As a statutory right for employees, it is the duty of the employer to ensure that parents who are eligible for SPL are not penalised or prevented in any way should they decide to take the entitlement.
How does SPL affect other parental leave?
Parents are entitled to take their regular maternity, paternity or adoption leave entitlement as normal. However, an eligible mother may now choose to reduce her standard maternity or adoption leave entitlement in favour of SPL.
The time saved (up to a maximum of 50 weeks) can then be taken as SPL and split between the two parents accordingly.
Statutory shared parental leave pay
Shared parental leave pay is currently set at a statutory minimum of £140.98 per week, or 90% of an employee’s average weekly income, whichever is lower. The only difference between this and statutory maternity pay is that the first six weeks of statutory maternity pay amounts to 90% of whatever the employee earns, with no maximum.
Both employers and employees should be aware that shared parental leave pay is only paid for a maximum of 37 weeks – any additional weeks of leave are unpaid.
SPL notification system
Employees can submit three separate notices, each one requesting a block of leave. Employers can refuse any further requests beyond this , and may also refuse any discontinuous blocks of leave (two or more) requested as part of the same notice period.
Continuous leave notifications must be accepted by the employers. Periods of continuous leave tend to work to the employer’s advantage by minimising any disturbance to day-to-day business.
Confirming SPL notifications
Employers should confirm each leave agreement within 14 calendar days of receiving notification from the employee.
If a discontinuous block is requested, the employer has 14 calendar days to reach an agreement with the employee. If no agreement is reached during this time, the employee can withdraw their notice and re-submit another notification without any deduction from their allotted notice requests.
If the employee chooses not to withdraw their request, the default provision applies and the discontinuous leave must be transferred into one continuous block. In which case, the employee can specify exactly when the leave begins, providing it is within eight weeks from the date of the request. If the employee does not specify a start date, this automatically defaults to the date the discontinuous leave would have started.
As part of the 2016 Budget, George Osborne announced government plans to extend shared parental leave to include working grandparents. This development is still awaited.
Female employees have had maternity rights for many years but since 2003, fathers and adoptive parents have also had statutory rights to paternity leave and adoption leave. This also applies to same sex partnerships.
Adoption leave and pay are available both to individuals who adopt or one member of a couple where the couple is adopting jointly (the primary adopter). The couple has to choose which one of them will take the adoption leave. The co-adopter may also be entitled to paternity leave and pay.
An employee who has been newly matched with a child for adoption by an adoption agency can take up to 52 weeks adoption leave made up of 26 weeks ordinary adoption leave and a further 26 weeks additional adoption leave. There is no longer a length of service requirement in order to qualify.
Eligibility and certification
Employees will need to provide documents to prove they are entitled to statutory adoption leave. Generally speaking, this would be a matching certificate from a UK-recognised adoption agency. If the employee is adopting from overseas then different rules apply.
An employee may start their statutory adoption leave either from the day that the child starts living with them or up to 14 days before they expect the child to come to live with them. An employee should tell their employer they have been matched with a child within seven days of being notified of the match.
Statutory adoption pay
Statutory adoption pay (SAP) is paid for 39 weeks and usually covers the first 39 weeks of an employee’s adoption leave.
The current rate of pay is set at 90% of the employee’s gross average weekly income for the first 6 weeks. For the remaining 33 weeks, the rate of pay is set at £140.98 or 90% of the employee’s gross average weekly income, whichever is lower.
There are different eligibility criteria for SAP for UK and overseas adoptions. As an employer, you can recover some or all of your SAP payments from HM Revenue & Customs (HMRC).