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Parental leave: A guide for employers and employees

URN No: 06/567

Contents

• Foreword
   
  
•  SECTION 1: INTRODUCTION
•  1.1 What is parental leave? 
•  1.2 The legislation
•  1.3 Disabled children 
•  1.4 Employed or self-employed?  
•  1.5 People not covered by the provisions 
•  1.6 Other rights    
   
•  SECTION 2: PARENTAL LEAVE – THE MINIMUM STANDARD
•  2.1 Who can take parental leave? 
•  2.2 Caring for a child
•  2.3 How much leave can an employee take?
•  2.4 When can leave be taken?
•  2.5 Terms and conditions during parental leave
•  2.6 Returning to work after parental leave
•  2.7 Parental leave and redundancy 
   
  
• SECTION 3: FLEXIBILITY - MAKING AGREEMENTS IN THE WORKPLACE ABOUT HOW PARENTAL LEAVE WORKS
•  3.1 Designing a flexible scheme 
•  3.2 Collective agreements
•  3.3 Workforce agreements
•  3.4 Individual agreements
•  3.5 How to set up a workforce agreement
•  3.6 What are the basic rules for all parental schemes?
•  3.7 What other matters can employers and employees agree?
•  3.8 What happens when there is no agreement in the workplace?
   
   
•  SECTION 4: THE FALLBACK SCHEME
•  4.1 What happens under the fallback scheme?
•  4.2 Notice provisions
•  4.3 Postponement provisions
•  4.4 Exceptions to the postponement provisions
•  4.5 Record keeping 
   
  For Sections 5-8 please go to:
    Parental leave: A guide for employers and employees: Sections 5-8
   SECTION 5: PROTECTION FROM DETRIMENT AND DISMISSAL
   5.1   Protection from detriment
   5.2   Protection from dismissal
    
   SECTION 6: ENFORCEMENT THROUGH EMPLOYMENT TRIBUNALS
   6.1   Grounds for making a complaint
   6.2   Resolving disputes
   6.3   Complaints to employment tribunals
   6.4   Remedies
   6.5   Enforcing agreements
    
   SECTION 7: OTHER HELP EMPLOYEES CAN GET DURING PARENTAL LEAVE
   7.1   Claiming income support during parental leave
   7.2   Other benefits
   7.3   Working Families' and Disabled Person's Tax Credits
    
   CHAPTER 8: WHERE TO FIND FURTHER INFORMATION
   8.1   Useful telephone numbers and websites     
  

Foreword  

This document gives general guidance only and should not be regarded as a comprehensive or authoritative statement of the law. It describes the position which applies in England, Wales and Scotland. It addresses some of the more frequently asked questions on the right to parental leave.

It also sets out how the Government would encourage employers to go beyond the minimum provisions of the Regulations, where it is possible to do so. The Good Practice Examples are intended to help employers recognise where they can improve on any aspect of the right to parental leave, where this accords with the priorities, needs and circumstances of the parties concerned, and with what the business or organisation can afford. Further advice on legislation concerning employment is available from the Advisory, Conciliation and Arbitration Service (Acas). Details on how to contact Acas, as well as other organisations are contained in Section 8 of this document.

Section 1: Introduction 

1.1 What is parental leave?  

This document sets out guidance on the right to parental leave. Parental leave is a right to take time off work to look after a child or make arrangements for the child’s welfare. Parents can use it to spend more time with children and strike a better balance between their work and family commitments.  

1.2 The legislation

The right to parental leave was first introduced on 15 December 1999 under the Maternity and Parental Leave Regulations etc.1999 [1]. These Regulations were made under the Employment Rights Act 1996, as amended by the Employment Relations Act 1999.  

From 10 January 2002, changes to parental leave came into force under the Maternity and Parental Leave (Amendment) Regulations 2001[2]. These changes extended parental leave to parents of children who were under five years old on 15 December 1999 and parents of disabled children under 18.  Parents of children who were born or placed for adoption between 15 December 1994 and 14 December 1999 are entitled to parental leave, providing they have the necessary qualifying service (see 2.1 Who can take parental leave?). These newly qualified parents will have until 31 March 2005 to take their full entitlement, or, for adoptive parents, until the child’s 18th birthday, if that is sooner. Parents of disabled children will have until their child’s 18th birthday to take their full entitlement. 

The Maternity and Parental Leave (Amendment) Regulations 2002, which came into force on 11 November 2002, improved the treatment of a parent’s terms and conditions on return from a period of parental leave.  

1.3 Disabled children

For the purposes of parental leave, a "disabled child" is a child for whom an award of Disability Living Allowance has been made. Parents of children for whom an award of Disability Living Allowance has been made are entitled to 18 weeks' parental leave, instead of the standard 13 weeks available to other parents, and are able to use their leave up to their child's 18^th birthday.

1.4 Employed or self-employed?  

The rights described in this document apply to full-time and part-time employees, provided they satisfy the qualifying conditions for parental leave, such as length of service, and have a contract of employment, written or unwritten, with their employer. Whether someone is an employee working under a contract of employment or a self-employed person working under a contract to provide services depends upon the true nature of the agreement entered into by the parties. If the employer has a duty to provide work, controls when and how it is done, supplies equipment to do it and pays tax and national insurance contributions on the worker’s behalf, then it is likely that the worker is an employee. Further information on employment status and contracts of employment can be found in Contacts of employment: changes, breach of contract and deductions from wages.

1.5 People not covered by the provisions  

In addition to self-employed workers, the Regulations do not apply to members of the police service or masters or crew members engaged in share fishing paid solely by a share of the catch.  

1.6 Other rights  

Time off for dependants  

All employees have the right to take a reasonable amount of time off work to deal with an emergency involving a dependant, and not to be dismissed or victimised for doing so. Family emergency? Your right to time off provides more detail of this right.  

Maternity leave  

All pregnant employees whose babies are due on or after 6 April 2003 are entitled to 26 weeks’ ordinary maternity leave (regardless of how long they have worked for their employer). A woman may also be able to receive Statutory Maternity Pay from her employer or Maternity Allowance during this time. Employees who have worked continuously for their employer for 26 weeks at the beginning of the fourteenth week before the week their baby is due are also entitled to a further 26 weeks' additional maternity leave.

Employed fathers whose baby is born, or expected to be born, on or after 6 April 2003 may be entitled to take one or two weeks' paternity leave and Statutory Paternity Pay (SPP). To qualify employees must have worked continuously for their employer for 26 weeks at the beginning of the fourteenth week before the week their baby is due. To be eligible for SPP they must also earn above a certain amount. 

Employees adopting a child who is placed for adoption on or after 6 April 2003 may be entitled to 52 weeks' adoption leave and 26 weeks' Statutory Adoption Pay (SAP). To qualify for leave employees must satisfy length of service requirements. To qualify for SAP they must also earn above a certain amount. Where a couple adopts they can chose which one of them will take adoption leave and pay and which will take paternity leave and pay. If an individual adopts their partner, if they have one, may be able to take paternity leave and pay. 

Employees who are parents of children aged under six or of disabled children aged under 18 have the right to apply to work flexibly. Their employers must take such requests seriously. 

Section 2: Parental leave - the minimum standard  

2.1 Who can take parental leave?  

Relationship to the child

Both mothers and fathers, whether they are birth or adoptive parents, can qualify for parental leave, provided they are employees (see 1.3).  

They must either be named on the child’s birth certificate or they must have, or expect to have, parental responsibility under the law[3] for the child. The parents of a child do not have to be living with the child in order to qualify for parental leave.  

Employees who are adopting a child will be entitled to take parental leave because they will have parental responsibility when they adopt.  

In some cases legal responsibility for looking after a child will have been given to someone other than a natural or adoptive parent, such as a guardian. If an individual has acquired parental responsibility for the  child, he or she will be entitled to parental leave if the qualifying conditions set out in this document are met.  

Parental leave must be to care for a child (see 2.2).  

Length of employment  

Employees with children born on or after 15 December 1999 (the date the right was first introduced) who want to take parental leave, must have worked for their employer continuously for a year by the time they want to take the leave.  

Parents of children who were born or placed for adoption between 15 December 1994 and 14 December 1999 or parents of disabled child under 18, who want to take parental leave, must have either worked for their current employer continuously for one year by the time they want to take the leave, or have worked for a previous employer continuously for a year during the period 15 December 1998 and 9 January 2002 and be currently employed.    

FREQUENTLY ASKED QUESTIONS  

What happens when there is a break in employment before the one-year qualifying period is completed?  

Continuous employment usually means working for the same employer without a break, but it does not always mean this. Sometimes employment can be regarded as continuous in spite of short breaks. For example, absence from work because of sickness or pregnancy, paternity or adoption leave, temporary lay-off and holiday breaks all count automatically, provided the employment contract continues throughout. In the case of parents of children born between 15 December 1994 and 14 December 1999 or parents of disabled children, the qualifying service is met by employment with any employer for a period of more than one year between 15 December 1998 and 9 January 2002, even when this is not his current employer.  

What happens if an employee has qualified for parental leave, but then changes jobs?  

Unless the new employer is an associated employer, employees with children born on or adopted on or after 15 December 1999 (the date the right was first introduced) need to complete a years qualifying service with their new employer before they can take parental leave. Employees with children born or adopted between 15 December 1994 and 14 December 1999 need to have completed a year’s continuous service with an employer between 15 December 1998 and 9 January 2002. Continuous employment and a week’s pay provides guidance on when time with a previous employer may count towards continuity of employment.  

2.2 Caring for a child  

The purpose of parental leave is to care for a child. This means looking after the welfare of a child and can include making arrangements for the good of a child. Caring for a child does not necessarily mean being with the child 24 hours a day. The leave might be taken simply to enable the parents to spend more time with young children. Examples of the way leave might be used:  

• to spend more time with the child in early years; 

• to accompany a child during a stay in hospital;  

• checking out new schools;

• settling a child into new childcare arrangements;

• to enable a family to spend more time together, for example, taking the child to stay with grandparents.  

FREQUENTLY ASKED QUESTIONS  

How can employers deal with parents who do not use parental leave to care for a child?  

Parental leave is to look after a child, which includes making arrangements for the good of the child. If the employee uses the leave for some other purpose, then he or she would be acting dishonestly and the employer can deal with this situation according to the business’s usual disciplinary procedures.  

Can employees take parental leave when a child suddenly falls sick?  

This will depend on the workplace scheme. Many schemes, including the fallback scheme (see Section 4), will require a period of notice before the employee can take parental leave. Workplace schemes can be as flexible as they wish about this.  

Where it is not possible for the employee to use parental leave to care for a sick child, the employee will be able to take a short amount of time off to deal with the onset of the child’s illness. This is allowed under the right to time off for dependants. There is no qualifying period for entitlement. Family emergency? Your right to time off sets out details of this right.  

2.3 How much leave can an employee take?  

Each parent can take 13 weeks’ parental leave for each child. This means that both mothers and fathers, if they have twins or adopt more than one child at a time, can take 13 weeks’ leave for each child.  

Parents of disabled children can take 18 weeks’ parental leave for each disabled child.  

One week’s parental leave is equal to the length of time that an employee is normally required to work in a week. This means that a week’s leave for an employee who usually works from Monday to Friday is equal to five days, while for an employee who works Mondays and Tuesdays only, a week’s leave is equal to two days.  

Some employees’ working patterns vary from week to week. In such cases, an average working week needs to be calculated as a fraction of the period for which he or she is required to work in a year. For example, an employee who is contracted to work three days a week for 30 weeks, four days a week for 18 weeks, and two days a week for four weeks would calculate the number of days leave in his or her average week by dividing the total number of working days in these periods by 52.  

In cases where the leave taken is in blocks of less than one week, a week is only deducted from an employee’s overall entitlement to 13 weeks, (18 weeks for parents of disabled children) when the short periods of leave add up to what would be a normal or average working week.    

FREQUENTLY ASKED QUESTIONS  

Can a father transfer any or part of his leave entitlement to the mother?  

Parental leave is an individual right and can not be transferred between parents.  

How are periods of absence dealt with in calculating an average working week?  

Any calculation should include weeks where under the contract of employment the employee would be expected to work, disregarding the possibility that the employee may take any of these weeks as holiday or sick leave.  

What happens if an individual’s status changes from full-time to part-time, or vice versa, during the time period during which parental leave can be taken?  

If an employee who takes parental leave in blocks of one week, changes his or her hours of work, then a week’s parental leave would be equal to what would be a normal working week under the new contract of employment.  

2.4 When can leave be taken?  

Parents of children born on or after 15 December 1999 (the date the right was first introduced), can take parental leave up to the child’s fifth birthday.  

Adoptive parents of children adopted on or after 15 December 1999 (the date the right was first introduced), can take leave up to the fifth anniversary of the date when the placement for adoption began, or the child’s 18th birthday if this is earlier.  

Parents of children born between 15 December 1994 and 14 December 1999 can take parental leave up until 31 March 2005.  

Adoptive parents of children adopted between 15 December 1994 and 14 December 1999 can take parental leave up to 31 March 2005, or the child’s 18th birthday if this is sooner.  

Parents of disabled children can take leave up to the child’s 18th birthday.    

FREQUENTLY ASKED QUESTIONS  

Can parental leave be taken immediately after maternity leave?  

Mothers can take parental leave immediately after a period of maternity leave, provided that any notice requirements set in the workplace or fallback scheme, whichever is applicable, are met, and provided that other conditions, such as the qualifying period, are met.  

What is the date of placement?  

The date of placement is the date when a child is placed by an external agency into a family home prior to formal adoption. Parents can take leave in respect of a child who was placed for adoption with the family before 15 December 1994, where the legal adoption process is completed on or after 15 December 1994.  

What happens if there is no date of placement?  

There may be occasions when there is no date of placement; for example, if the child is already in a family when a step-parent formally adopts the child in the place of a parent. In such cases, the period in which leave can be taken starts when the step-parent acquires a reasonable expectation of gaining parental responsibility and ends on the child’s fifth birthday.      

2.5 Terms and conditions during parental leave  

Some terms and conditions of employment continue to apply during periods of parental leave. These are set out below.  

An employee is entitled to benefit from his or her employer’s implied obligation to him or her of trust and confidence during parental leave, and any contractual terms and conditions relating to:  

• notice periods;    

• any compensation if the employee is made redundant;   

• the business' disciplinary or grievance procedures.

The employee is bound by his or her implied obligation of good faith during parental leave and by any contractual terms and conditions relating to:    

• notice periods; 

• disclosure of confidential information;

• acceptance of gifts, or other benefits;    

• the employee working for someone else.

The employment contract continues during an absence on parental leave, unless it is terminated by the employer or employee. This means that an employee continues to benefit from his or her statutory employment rights during parental leave.

The continuation of other terms and conditions during parental leave, such as access to a company car or mobile phone, and perks such as health club membership, remains a contractual matter between the employer and employee.  

FREQUENTLY ASKED QUESTIONS  

Is parental leave paid?  

The right does not include a statutory right to pay, so whether or not the employee will be paid is left to the employer’s discretion, or to the contract of employment between them.  

Is an employee entitled to receive any bonuses which may fall during parental leave?  

Payments of bonuses during parental leave can be a complicated area, where independent legal advice should be sought. Whether a bonus is payable to an employee on parental leave depends on the type of bonus and the terms of the particular bonus scheme.  

Generally, however, an employee will be entitled to the bonus if it relates to performance or work already done prior to his or her parental leave. An employee is unlikely to be entitled to the bonus if it is a reward for future work or performance, during a period in which the employee would be absent on parental leave.  
In drawing up the terms and conditions of any bonus scheme, employers should take particular care not to indirectly discriminate on grounds of sex against those employees taking parental leave.  

Further information about sex discrimination can be found in the booklet Sex Discrimination: a guide to the Sex Discrimination Act 1975 (PL 955).[4]  

Can holiday accrue during periods of parental leave?  

A period of absence on parental leave does not affect entitlement to paid annual leave under the Working Time Regulations. The booklet A Guide to the Working Time Regulations[5] provides more information on the entitlement to statutory holiday leave.  

The accrual of additional contractual holiday entitlement during parental leave is a matter for agreement between the parties concerned (or their representatives).  

2.6 Returning to work after parental leave  

An employee is entitled to return to the same job as before if the parental leave was for four weeks or less and either an isolated period of leave or the last of two or more consecutive periods of statutory leave which didn't include any period of additional maternity leave or additional adoption leave.  

After a period of parental leave of more than four weeks or parental leave which was preceded or followed by consecutive periods of leave which included a period of additional maternity leave or additional adoption leave the employee is entitled to return to the job in which he was employed before, unless that is not reasonably practicable.  If it is not reasonably practicable for the employee to return to the same job they are entitled to return to a similar job which has the same or better status, terms and conditions as the old job.  

An employee returning to work after parental leave is entitled to benefit from any general improvements to the rate of pay (or other terms and conditions) which may have been introduced for his or her grade or class of work while he or she has been away.  

FREQUENTLY ASKED QUESTIONS  

What happens to an employee’s seniority rights on resuming work after taking parental leave?  
Generally an employee's seniority and pension rights are unaffected by parental leave and rights on return from parental leave should be the same as they would have been if the employee had not been absent.  

However, if the parental leave period is consecutive with other periods of statutory leave which include a period of additional maternity leave or additional adoption leave, the periods of employment before the additional maternity leave or additional adoption leave are joined together with the period of employment following it as if the two periods were continuous.  The additional maternity leave period or additional adoption leave period does not count for the purposes of assessing seniority pension rights or calculating length of service for statutory rights, such as two year's service for redundancy payments (see 2.5).  

2.7Parental leave and redundancy

An employee taking parental leave should be treated in the same as any other employee when a redundancy situation arises. This includes treatment relating to consultation about the redundancy and consideration for any other job vacancies. 

It is unlawful for an employer to select an employee for redundancy solely or mainly on the basis that he or she is taking, proposing to take, or has taken, parental leave.