Employees with responsibility for a child, including adoptive parents, may have the right to unpaid time off work to care for the child. The details of this right are set out in the Employment Rights Act 1996 and the Maternity and Parental Leave etc Regulations 1999.
The purpose of parental leave is to care for a child, which means not only physically caring for the child but also looking after the welfare of the child in a general sense and making arrangements for the child's good. Parental leave could therefore be used, for example, to check out new schools, to accompany the child on a stay in hospital, or to take the child to stay with grandparents.
An employee qualifies for parental leave if he or she has been continuously employed ( Calculating qualifying periods ) for one year or more at the time when the leave begins. The employee must have, or expect to have, responsibility for a child. This covers:
- the child's birth mother;
- the child's biological father if married to the child's mother;
- the person registered as the child's father on the birth certificate;
- the child's adoptive parents; and
- anyone else who has acquired parental responsibility for the child under the Children Act 1989 or the Children (Scotland) Act 1995.
The right to parental leave is personal, so one parent cannot transfer his or her leave entitlement to the other.
Employees are entitled to a total of 13 weeks' parental leave in respect of each qualifying child for whom they have responsibility. Parents of a child who is entitled to disability living allowance are entitled to 18 weeks' parental leave.
A week's parental leave is equal to the time an employee would normally be required to work in a week. For example, an employee who works a two-day week will be entitled to a total of 26 working days off work as parental leave. Employers are not legally required to keep records of how much parental leave an employee has taken, but are likely to want to do so nevertheless.
Parental leave must be taken:
- before the child's fifth birthday; or
- if the child is entitled to disability living allowance, before the child's eighteenth birthday; or
- if the child has been placed with the employee for adoption, before the fifth anniversary of the date on which the child was placed for adoption or the child's eighteenth birthday, whichever comes earlier.
Leave may be taken later if the employer postpones the dates of the leave, under the default rules (default rules ).
Employers have a degree of flexibility in deciding the mechanics of how parental leave is taken, provided this is done by agreement. This can be an agreement with the employee. It can also be a collective agreement with an independent trade union or, if the employer does not negotiate with a union, a workforce agreement, provided the collective or workforce agreement is incorporated into the employee's contract (legal constraints ).
A workforce agreement is an agreement with employee representatives who have been elected by the workforce. If the employer has 20 or fewer employees, it has the alternative option of reaching a workforce agreement with a majority of the workforce. A workforce agreement must meet detailed conditions. Employers who are considering entering into a workforce agreement on parental leave should obtain advice from their Association.
If no agreement is reached, then these default rules apply:
- Parental leave must usually be taken in periods of a whole week or weeks. However, if the child is entitled to disability living allowance, the leave may be taken in shorter periods.
- No more than four weeks' parental leave can be taken in any year. Each year runs from the date on which the employee first became entitled to parental leave for the child, or, if the employee joined the employer after first qualifying for parental leave, the date on which the employee first qualified for parental leave from this employment by completing one year's service.
- The employee must produce any evidence reasonably required by the employer to show that the employee has legal responsibility for the child, the date of the child's birth or adoption, and, if relevant, the child's entitlement to disability living allowance. This could include, for example, a birth certificate or adoption papers.
- The employee must notify the employer at least 21 days in advance of the date he or she wants the parental leave to begin, and give the dates on which the leave is to begin and end. This need not be in writing. Women on maternity leave who want to take parental leave after their maternity leave has ended should also give notice in this way.
- If the employer considers that its operation would be unduly disrupted if the employee took parental leave between those dates, it can postpone the leave for up to six months, to a date fixed after consultation with the employee. The leave cannot be postponed beyond the child's eighteenth birthday. If the employer decides to postpone the leave, it must let the employee know in writing within seven days of receiving the request for leave, and must give the reason for the postponement and the dates on which the leave will now begin and end. For example, an employer may be justified in postponing parental leave if the work is at a seasonal peak, a significant proportion of the workforce has applied for parental leave at the same time, or the employee's role is such that his or her absence at the particular time would unduly harm the business.
- If the employee is a father-to-be who intends to take parental leave from the date his baby is born, different rules apply. He must let his employer know he intends to take parental leave at least 21 days before the week the baby is due. He need not give the dates the leave is to begin and end, but must notify the employer how long he intends to take, and the week the baby is due. The employer cannot postpone the leave.
- Different rules also apply if the employee is an adoptive parent who intends to take parental leave from the date the child is placed for adoption. The employee must let the employer know that he or she intends to take parental leave at least 21 days before the week the child is due to be placed for adoption, or as soon after that as possible. The employee need not give the dates the leave is to begin and end, but must let the employer know how long he or she intends to take, and the week the child is due to be placed for adoption. The employer cannot postpone the leave.
Employees are likely to take paternity leave rather than parental leave immediately around the time their child is born or placed for adoption, since they may qualify for statutory paternity pay, whereas parental leave is unpaid.
It seems that a collective or workforce agreement can override any aspect of these default rules, but an agreement with an individual employee can depart from the default rules only if it improves upon them. For example, a collective agreement could stipulate that the shortest period for which parental leave can be taken is two weeks, whereas a similar term in an individual's contract would be overridden by the default rule of one week.
During parental leave, the employee is bound by his or her implied obligation to act in good faith and by any of his or her terms and conditions that relate to notice of resignation, disclosure of confidential information, acceptance of gifts or other benefits or participation in any business. All of an employee's other terms and conditions will be suspended during parental leave, unless his or her contract of employment, or any agreement he or she has reached with the employer, states otherwise.
Although an employer is not obliged to pay an employee any wages or salary during parental leave, some employers may give employees a contractual right to be paid for some or all of their leave. Under the Social Security Act 1989, during any period when an employee is on parental leave and receiving any pay under his or her contract, he or she must be treated for pension purposes as if he or she were working normally but being paid what he or she is actually receiving. The pension contributions that the employee is obliged to make must also be based on the pay he or she is receiving.
Any entitlement that an employee has to paid holiday under the Working Time Regulations 1998 (holidays) is unaffected by the fact that he or she may be on parental leave for part of the leave year. The employee is therefore likely to be entitled to at least the legal minimum paid holiday in addition to parental leave. Any weeks when the employee is on parental leave and receiving no pay or less than normal pay are disregarded when calculating his or her entitlement to holiday pay under the Regulations. Any contractual holiday entitlement over and above the minimum statutory entitlement will not accrue during parental leave unless the contract or some other agreement between the employee and employer says otherwise. (contract terms and the working time regulations ).
An employee's contract of employment continues throughout parental leave, so the employee continues to build up continuous service for the purposes of any employment rights that depend on continuous employment, such as unfair dismissal and the right to a redundancy payment. Any weeks of parental leave when the employee was not paid, or received less than his or her usual pay, are disregarded when calculating the size of any statutory redundancy payment to which the employee may later be entitled (payment calculation ).
An employee returning from parental leave of four weeks or less is entitled to return to his or her original job, even if, in the case of a female employee, she has tacked the leave on to the end of her ordinary maternity leave.
The position is slightly different for an employee who has taken parental leave of four weeks or less immediately after additional maternity leave. If her employer can show that it would not have been reasonably practicable to allow her to return to her old job either at the end of her additional maternity leave or at the end of her parental leave, her employer or an associated employer (change of employer ) is entitled to offer her suitable alternative work. The status and terms and conditions of the employee's new job must be at least as good as those of her old job.
The employer also has that option if the employee is returning from parental leave of more than four weeks and it is not reasonably practicable to allow the employee to return to his or her original job.
Companies that need advice on the rights of employees returning to work after two or more consecutive periods of any other combination of family leave should contact their Association.
An employee returning from parental leave is entitled to return on terms and conditions that are as favourable as those that would have applied had he or she not been absent from work.
It is unlawful for an employer to dismiss an employee, select an employee for redundancy or treat an employee unfavourably in any other way on the grounds that the employee:
- has taken, or sought to take, parental leave;
- has refused to sign a workforce agreement on parental leave; or
- has acted as an employee representative or candidate for election in connection with a workforce agreement.
For example, it would be unlawful to discipline an employee for a poor attendance record, if that were due to the employee's absence on parental leave.
An employee who is dismissed or resigns while on parental leave may have the right to be paid his or her usual pay during the period of notice. This is the case even if that falls during a time when he or she would otherwise be receiving less than full pay or no pay at all. This protection applies to employees who are entitled to no more than six days more than the minimum notice of dismissal required by the Employment Rights Act 1996 (minimum notice periods ). (The minimum period of notice is, broadly speaking, one week for each year that the employee has been employed, up to a maximum of 12 weeks.)