8. Leave for working parents

Recent enhancements to leave for working parents include: an increase in paid maternity and adoption leave from six to nine months; the introduction of "keeping in touch" days for employees on maternity or adoption leave; an extension of the right to request flexible working to carers; and the payment of additional paternity leave if the mother returns to work earlier.

The changes to maternity, paternity and adoption leave can be found in the Maternity and Parental Leave etc and the Paternity and Adoption Leave (Amendment) Regulations 2006, and the Additional Paternity Leave Regulations 2010. The changes to flexible working can be found in the Flexible Working (Eligibility, Complaints and Remedies) (Amendment) Regulations 2006.

It is automatically unfair to dismiss an employee, or to submit him or her to a detriment (such as withholding a promotion or pay rise) for trying to take advantage of a statutory right, including the various rights to family-friendly leave referred to in this chapter. No period of service is necessary. See Chapter 10: Automatically unfair dismissal.

Antenatal care

Pregnant employees have the right to paid time off to attend appointments for antenatal care under section 55 of the Employment Rights Act 1996 (ERA 96). For this right to apply the appointment must have been made on the advice of a registered medical practitioner, midwife or nurse and, except for the first appointment, the employee must, if she is asked by her employer, provide a copy of a certificate showing she is pregnant and written proof of the antenatal appointment. As of October 2011, this right was extended to pregnant agency workers who have acquired sufficient service (see Chapter 2: Agency workers).

If an employer unreasonably refuses time off or does not pay the employee the amount she is entitled to, she can bring a claim in an employment tribunal, which must normally be done within three months of the appointment. If the claim is upheld, the tribunal can order the employer to pay her at the appropriate rate. She is entitled to this even if the employer's refusal to allow time off meant she worked, and was paid, during the time when the appointment would have occurred.

Maternity leave

Every woman in work has the right to maternity leave (although not necessarily paid - see the next section for rights to maternity pay). There are three types of leave:

• ordinary maternity leave (OML) - 26 weeks.

• compulsory maternity leave - two weeks within the period of OML (four weeks in the case of factory workers) immediately following the birth, which must be taken; and

• additional maternity leave (AML) - a further 26 weeks.

Any woman who qualifies for OML also qualifies for AML - the additional qualifying conditions having been removed. To get OML a woman must still be in work into the 15th week before the baby is due. By the 15th week she has to have given her employer notice of her pregnancy and of the date when she intends to begin her maternity leave.

A woman can change her mind about this date but has to give her employer at least 28 days' notice of the new start date. If her employer requests it, she also has to provide a copy of a doctor's or midwife's notice that she is pregnant. She can begin the leave any time after the 11th week before the baby is due, up to the week it is born. She must, as a minimum, be off for the whole of the compulsory leave period.

During her maternity leave a woman can, if she wants to, carry out work or training of up to 10 days for her employer without losing her right to Statutory Maternity Pay (see below) and without bringing her maternity leave to an end. This is for the purpose of "keeping in touch" with the workplace.

While on maternity leave a woman has the right to all non-wage contractual benefits. She has the right to be given the opportunity for assessment, wherever the pay system is performance-based. In the case of Boyle v EOC [1998] IRLR 717, the European Court of Justice (ECJ) confirmed that where the pension provision is entirely funded by the employer, all of a woman's statutory maternity leave, including any unpaid leave, is to be taken into account in calculating length of service for pension purposes.

Although women on additional maternity leave used to retain less comprehensive contractual rights, this was part of the Equal Opportunities Commission's (EOC) challenge to the UK legislation and they successfully argued that women should not have fewer rights when they take additional leave (EOC v Secretary of State for Trade and Industry [2007] EWHC 483). These changes have now been incorporated into the sex discrimination provisions of the Equality Act 2010.

As far as statutory holiday rights are concerned, a woman who is on maternity leave must be able to exercise those rights even if that means taking her holidays at a time that does not coincide with when her colleagues take leave.

She also has the right to be told of any jobs that become available while she is on maternity leave, for which she might be interested in applying. A failure to give this information amounts to a breach of trust and confidence, according to the EAT in the case of Visa International Service Association v Paul [2004] IRLR 42. And she has the right to be consulted about any changes to her job or reorganisation. If she has been serving a probationary period and, due to her maternity leave, has had less time in the job the employer must extend her period of probation if the alternative is dismissal for failing her probation (Haines Lee v Relate Berkshire EAT/1458/01).

Additional leave starts at the end of the period of ordinary leave and lasts for another 26 weeks. In total, a woman can have up to a year's maternity leave (although not all of it is paid under the statutory scheme - see below).

Transferring maternity leave

Also, where the expected week of childbirth began on or after 3 April 2011, a mother will be able to transfer up to six months of her maternity leave to the father (or husband, civil partner, or partner): Work and Families Act 2006 and Additional Paternity Leave Regulations 2010. Specifically, once the baby is 20 weeks old and the mother wishes to return to work, the father will be able to take between two and 26 weeks' additional paternity leave (APL). However, the leave must end by the child's first birthday (or first anniversary of placement for adoption).

Under the statutory scheme, this is reimbursed at the same rate as that which the mother would have received - i.e. either £135.45 per week or unpaid. However, where an employer offers enhanced maternity pay (i.e. it operates a more generous contractual scheme), this European court case suggests that the employer may also have to offer the same pay supplements to individuals taking APL:

In its consultation Modern workplaces, the government has proposed further changes. It suggests that ordinary maternity leave (paid) be reduced to 18 weeks; that new parents share 30 weeks between them to be divided as they wish (17 weeks of this will be paid); and a further non-transferable four weeks (paid) will go to the mother. A corresponding four-week period (also paid) is being proposed for the father or partner creating a total of 58 weeks paid leave.

Maternity pay

To get Statutory Maternity Pay (SMP), a woman has to fulfil four requirements:

• she has to have worked for her employer for at least 26 weeks by the 15th week before the baby is due;

• in the eight weeks (or two months if monthly paid) prior to the 15th week, she has to have had average earnings of at least £107 a week;

• by the 15th week before the baby is due, she has to have given her employer medical evidence of her pregnancy and told them when she intends to stop work and start claiming SMP; and

• she must have actually stopped work.

She will then get six weeks' pay at 90% of average earnings (higher rate SMP) and 33 weeks' at a flat rate of £135.45 (2012-13) (or 90% of average earnings if this is less). SMP starts in the first week of maternity leave and continues until 39 weeks have passed or the employee returns to work, whichever happens first.

SMP is paid by the employer through the normal pay packet. The employer then reclaims most of it back through the national insurance scheme.

If a woman is refused SMP and believes she is entitled to it, she should write to the employer or make a formal complaint. If no agreement can be reached, the local HM Revenue and Customs Office can be asked for a formal decision.

A woman not qualifying for SMP may be able to claim Maternity Allowance (MA) through her local Jobcentre Plus office. MA is a flat rate of £135.45 a week (2012-13) payable for 39 weeks. The condition for this benefit is that she has had at least 26 weeks' employment, which need not be continuous, within the previous 66 weeks.

Individuals who met the criteria for SMP but subsequently lose their jobs, even as a result of gross misconduct, will still retain their entitlement. Rights to SMP are not dependent on returning to work. However, rights to more generous occupational maternity pay can be linked to returning to work for a specified period, and this is not unlawful according to the European Court of Justice (ECJ) in the case of Handels-og Kontorfunktionaerernes C-66/96 [1999] IRLR 55.

The ECJ has ruled that it is not contrary to the Directive on equal treatment to pay less than full pay during maternity leave. However, the calculation of maternity pay must be based on what a woman is earning immediately before she begins her maternity leave and this must include any subsequent increase that is backdated to that period.

As a consequence of the Alabaster ruling the law was changed with effect from April 2005. Pay increases between the beginning of the 15th week before the baby's expected birth and the end of the maternity leave period are taken into account.

In the case of the North Western Health Board v McKenna C-191/03 ([2005] IRLR 895) (see Chapter 7: Occupational sick pay), the ECJ ruled that it is not discriminatory for an employer to calculate sick pay for a woman absent for a pregnancy-related illness in the same way as it would for a man who is absent for any kind of illness.

It can also be lawful to calculate a bonus on a pro rata basis by deducting any period during which a woman was absent on maternity leave, as long as nothing is deducted for the two-week compulsory maternity leave period.

However, this case was decided because of the terms of the particular bonus scheme and the result might not be the same for someone with a different contractual scheme, particularly if the scheme is discretionary (Hoyland v Asda Stores Ltd EAT/0058/04 ([2005] IRLR 438)).

Returning to work

Once an employee has given notice of her maternity leave, her employer must write to her within 28 days to tell her what her return date will be.A woman returning from ordinary or additional maternity leave need do no more than turn up for work on the date already notified to her by her employer. She can also choose to return to work before her maternity leave period ends, but has to give the employer at least eight weeks' notice of her return. An employer cannot refuse to let her return to work before the end of her maternity leave period, provided she has given notice.

In a case taken to the European Court of Justice (ECJ), Busch v Klinikum Neustadt C-320/01 ([2003] IRLR 625), the Court ruled that there was no right to bar an employee's return. The woman's reason for returning early was that she had exhausted her maternity pay and was pregnant again; returning to work and then immediately commencing another period of maternity leave gave her a new right to maternity pay.

Provided that a woman returns to work at the end of her ordinary maternity leave, she has the right to return to the same job she was employed to do before her absence. The "same job" is what she was required to do under her contract.

For example, in the case of Blundell v Governing Body of St Andrew's Catholic Primary School UKEAT/0329/06 ([2007] IRLR 652), the EAT said a primary school teacher did not have the right to return to teaching the reception class as under her contract she could be required to teach any year.

A woman returning from additional maternity leave has less comprehensive rights on return: she has the right to return to the same job she was doing or, if that is not reasonably practicable, to another suitable and appropriate alternative. She returns on terms and conditions no less favourable than had she not taken maternity leave, with her seniority and pension rights as they would have been had she not taken leave. Her employer cannot refuse to take her back just because her replacement is found to be a more effective worker.

The ECJ, in the case of Land Brandenburg v Sass C-284/02 ([2005] IRLR 147), held that even if a woman takes more maternity leave than the minimum provided by law she still has the right to have all of the leave period included in calculating her service.

The fact that a woman is sick and unable to return to work on the agreed date does not give the employer a right to treat her contract as terminated, according to the Court of Appeal in the case of Kwik Save v Greaves [1998] IRLR 245. Her period of sickness absence starts from the date she would have returned to work.

These pay, leave and return-to-work provisions are all minimum statutory requirements. Many women will have better arrangements, negotiated by the union, contained in the contract of employment. Under section 78 of the ERA 96, a woman who has the right to maternity leave under a contract, in addition to the statutory rights, may not exercise the two rights separately, but may take advantage of whichever right is the more favourable.

Right to a medical suspension relating to pregnancy and childbirth

Employees (and qualifying agency workers') right to a "maternity suspension" is governed by the Management of Health and Safety at Work (Amendment) Regulations 1999, which implement the health and safety provisions of the Pregnant Workers Directive. These provide that an employer has a general duty to assess risks to the health and safety of all employees, including risks to new and expectant mothers. Where a risk cannot be avoided the employee must change the woman's working conditions or hours of work and if this is not reasonable or would not remove the risk, the employer must suspend the woman from work for as long as necessary.

It would be sex discrimination to impose a change of duties or a medical suspension on a woman where the level of risk is low and does not require this (New Southern Railway Ltd v Quinn EAT/0313/05). The woman is entitled to be paid her normal wages during a medical suspension unless she has turned down an offer of suitable alternative work. For further information see LRD's guide Sickness absence and sick pay (2010).

Ordinary Paternity leave

Qualifying fathers, civil partners or partners of someone on maternity or adoption leave have the right to paid paternity leave. The leave is specifically to care for the new baby or to provide support for the baby's mother.

To qualify the individual must be an employee who has worked for their employer for at least 26 weeks by the 15th week before the baby is due and be earning at least £107 a week. The employee has to give the employer notice of his intention to take paternity leave before the 15th week before the expected week of the baby's birth.

Statutory Paternity Pay (SPP) amounts to a maximum of two weeks' paid leave. Payment is set at £135.45 (2012-13) a week, or 90% of earnings if they are less than this.

The leave must be taken as one period of either one or two weeks within eight weeks of the baby's birth. It cannot be taken as separate days or in more than one period.

For information on additional paternity leave (i.e. maternity leave transferred from a mother to her partner) see Transferring maternity leave, above.

Adoption leave

An adoptive parent has the right to leave and pay broadly equivalent to those for statutory maternity leave. To qualify, the parent must be newly matched with a child for adoption by an approved adoption agency. They must also be an employee and have worked for their employer for at least 26 weeks by the date that they are matched.

Adoption leave must begin either from the date of the child's placement or up to 14 days before that date. An adoptive parent has the right to 26 weeks' ordinary adoption leave (OAL) followed by 26 weeks' additional adoption leave (AAL).

Adoptive parents have the right to Statutory Adoption Pay (SAP) provided they are earning at least £107 a week. SAP is payable for 39 weeks at a flat rate of £135.45 (2012-13) (or 90% of earnings if they are less than this).

A worker also has the right to carry out up to 10 days of work or training during adoption leave for the purpose of "keeping in touch" with the workplace.

The rights to return to work on conditions no less favourable are the same as those that apply to maternity leave. The partner of a person claiming adoption leave can claim both ordinary paternity leave (please see above) and, with the primary adopter's consent, additional paternity leave.

Valerie Vaz, Labour MP for Walsall South, has introduced a private member's Bill (Adoption (Leave, Pay and Allowance Arrangements) Bill 2010-12) designed to press for an adoptive parent to enjoy the same benefits as a natural mother. She points out that:

• a pregnant worker is entitled to 52 weeks' statutory maternity leave irrespective of how long she's worked for her employer. However, in order to qualify for statutory adoption leave an adoptive parent must have at least 26 weeks' continuous service (prior to being notified as having been matched with a child).

• statutory maternity pay is more generous than statutory adoption pay. Specifically, maternity pay is paid for six weeks at 90% of earnings, followed by 33 weeks at £135.45 per week (or 90% of average earnings - whichever is the lower). However, adoption pay is only paid at £135.45 per week (or 90% of average earnings - whichever is the lower) for the 39 week leave period.

• where a biological mother is not entitled to statutory maternity pay (because she has not worked for the same employer for long enough), she may still be entitled to statutory adoption pay. There is no such fall-back provision for adoptive parents.

Ms Vaz's bill would require the government to analyse the costs and benefits of equalising the entitlements of biological and adoptive parents. Further information on the Adoption (Leave, Pay and Allowance Arrangements) Bill 2010-12 is available at: http://services.parliament.uk/bills/2010-12/adoptionleavepayandallowancearrangements.html

Parental and dependency leave

Employees are entitled to time off for parental leave under section 13 of the Maternity and Parental Leave etc Regulations 1999, and to time off to deal with family emergencies under section 57A of the ERA 96. In both cases the leave is unpaid.

Parental leave

Working parents have the legal right to a period of unpaid leave of up to four weeks in a year and overall no more than 13 weeks within the first five years of their child's life. For adopted children the leave is available in the five years from the time of adoption, provided that the child is still under the age of 18. If the child is disabled (meaning that s/he is entitled to disability living allowance), up to 18 weeks' unpaid leave in total can be taken up to the child's 18th birthday.

Parental leave is available to parents who have worked for their employer for at least a year. Unless there is an agreement to the contrary, leave must be taken in blocks of no less than a week except if a child is disabled. The right applies to each parent and for each child. Employees taking less than a week off lose a week of their entitlement.

In one case an employee who requested a day's parental leave to look after his son and was subsequently disciplined for taking the leave after receiving no response was not covered by the parental leave regulations. The Court of Appeal held that as the regulations only gave the right to leave in blocks of a week, his request for a day's leave could not have been made under them (Rodway v South Central Trains [2005] EWCA Civ 443 ([2005] IRLR 583).

An employee who wants to take parental leave has to give at least 21 days' notice. Where taking the leave at a particular time would cause undue disruption to the business, the employer can make the employee postpone the leave for a period of up to six months, except in the case of leave immediately after the child's birth.

Please note that the above sets out the statutory minimum entitlement. Many employers can and do operate more generous and flexible schemes. Specifically, in many workplaces, unions have successfully negotiated for parental leave to be paid, to not be limited to being taken in blocks of only one week, and to being available without giving long notice.

An agreement on improving statutory parental leave has also been reached at EU level. Under this agreement the amount of parental leave is to increase from 13 to 18 weeks – the additional five weeks not being transferrable between parents. (The intention being to encourage male partners to take leave which would otherwise be lost.)

These two enhancements were, in accordance with the directive agreed by the EU member states due to take effect by 8 March 2012. However, the coalition government has postponed the introduction of these new rules for a year. It will have the power to do this if it can show that it is facing "particular difficulties" at this time. Further information is available at: www.etuc.org/IMG/pdf/The_Revised_Parental_Leave_Framework_Agreement_EN.pdf

Family emergencies

Leave for urgent family reasons gives employees the right to reasonable unpaid time off to deal with family emergencies involving parents, children, a spouse or cohabitee, or anyone who looks to the employee for assistance. There is no qualifying period of service for emergency leave.

A family emergency is defined as sickness, accident, criminal injury, death, funerals, absence of the carer for a family member or serious problems at the child's school. In the case of Qua v John Ford Morrison EAT/884/01 [2003] IRLR 184, the EAT made it clear that the right to time off is either to deal with a variety of unexpected or sudden events involving a dependant or to make arrangements for their care.

The amount of leave is what is "reasonable in the circumstances" and is likely to involve relatively short periods of absence (Uzowuru v LB Tower Hamlets EAT/0869/04). The law covers time off following a dependant's death to make funeral arrangements and to attend the funeral. However, according to the EAT in the case of Forster v Cartwright Black Solicitors UKEAT/0179/04 [2004] IRLR 781, it does not extend to the right to compassionate leave as a result of bereavement.

An employee who requests time off for urgent domestic reasons under section 57A, Employment Rights Act 1996 should provide sufficient information for their employer to know that the leave is for those purposes (Truelove v Safeway Stores EAT/0295/04). Employees are protected from suffering a detriment or dismissal for exercising or seeking to exercise their rights to parental or domestic leave.

Shortly after he started his job as a delivery and collection driver, Thomas Palen had to take a day off to be with his wife, who had been taken to hospital. He returned to work the following day and was dismissed - his employer told him they were such a small company they could not afford such incidents.

The EAT held that Palen had been dismissed for a reason related to the right to take time off under section 57A, which made his dismissal automatically unfair and not subject to the (then) one-year qualifying service. He was awarded £3,835 in compensation for unfair dismissal, which included a 30% uplift because of the employer's failure to comply with the now repealed statutory disciplinary and dismissal procedures (RKS Services v Palen EAT/0300/06).

Flexible working

An employee with responsibility for the upbringing of a child under the age of 17 (18 in the case of a disabled child) has the right to request, in writing, a flexible working pattern to enable them to care for the child (sections 80F-80I, ERA 96). (The maximum age of non-disabled children for whom parents could request to work flexibly was due to be increased to 18 from April 2011 but the extension was scrapped by the coalition government). To qualify for the right, the employee must have been continuously employed by their employer for at least 26 weeks.

Since April 2007, the right to request flexible working also applies to carers (the 26 weeks' qualifying service also applies to carers). A carer is defined as an employee who is, or expects to be, caring for a person aged 18 or over and who:

• is married to, or the partner or civil partner of, the employee; or

• is a relative of the employee; or

• living at the same address as the employee.

In its consultation Modern workplaces, the government proposes that individuals wishing to use the statutory right to request procedure need not make the request in order to fulfill responsibilities or for any other specific reason.

The request has to set out the employee's desired working pattern and include an explanation of how the employer could accommodate the request. Employers have a statutory duty to consider the application seriously, rejecting it only if there are clear business reasons for doing so.

In the case of a request to care for a child, it must be made no later than two weeks before the child's cut-off age. In either case, once an employee makes a formal request for flexible working, s/he cannot make another one for 12 months.

Once a request has been made the employer has to arrange a meeting within a specified time scale to hear the employee's reasons for the request. The employee has the right to bring a workplace companion, who is entitled to paid time off to attend (regulation 14 of the Flexible Working (Procedural Requirements) Regulations 2002).

The employer must then write to the employee within 14 days, agreeing to the new work pattern or providing clear business grounds for rejecting it. There is a right to appeal but there is nothing specifically in the law to say that the same manager who turned down the request cannot also hear the appeal. If the employer fails to comply with any of these requirements an employee can go to an employment tribunal, or alternatively to voluntary arbitration (see Chapter 1: Binding arbitration).

Compensation of up to eight weeks' pay can be awarded if the employer unreasonably turned down a request for flexible working and up to an additional two weeks' pay if there was no meeting or if the employee was not allowed to bring a companion. Pay is capped at a maximum, currently £430 a week. The right to request flexible working was considered by the EAT in the case of Commotion Ltd v Rutty EAT/0418/05 ([2006] IRLR 171):

Both the employee and companion have the right not to be victimised or dismissed for a reason concerned with a request for flexible working (sections 47E and 104C, ERA 96).

A refusal to allow a worker to reduce their hours could also amount to indirect sex discrimination (see Chapter 6). The Court of Appeal held that an employer's refusal to allow an employee to work on a job-share basis amounted to sex discrimination and could not be justified when it had failed to show that the job could not be done on that basis (Hardys & Hansons plc v Lax [2005] EWCA Civ 846 ([2005] IRLR 726)).

And in the case of Shaw v CCL Ltd UKEAT/0512/06, the EAT held that the refusal to allow part-time work was both direct and indirect discrimination and amounted to a breach of contract that allowed the employee to resign and claim constructive dismissal.

In the case of Mitchell v David Evans Agricultural Ltd EAT/0083/06, the EAT said that when deciding whether an employer was justified in refusing an employee's request to work part-time, the tribunal should have undertaken a proper analysis of the needs of the business, and considered whether the proposal for a full-time worker was "reasonably necessary".