Parental and carer rights are complicated, as everyone’s situation is different. As a rep you may need to get advice on any particular case from your union. The legal position is set out clearly on the government website but remember that these rights are legal minimums and there may be separate agreements with your employers that improve on these.
If a member is pregnant while working, then they are entitled to a number of rights including time off for antenatal care, statutory maternity pay or maternity allowance, statutory maternity leave, protection against unfair treatment or unfair dismissal and the right to health and safety protection, including the right to a paid maternity suspension if the job risks their health and safety or that of their baby, and there is no other suitable job.
A member is entitled to protection against unfair treatment, time off for antenatal care and speciﬁc health and safety protection from the time they notify their employer they are pregnant. For maternity leave and pay, they should notify their employer at least 15 weeks before the beginning of the week the baby is due. If that is not possible, they should tell them as soon as possible after then.
All pregnant employees are entitled to time off for antenatal care, regardless of length of service with the employer. This would include time off to keep appointments for antenatal care made on the advice of a doctor, midwife or health visitor.
They are entitled to be paid their full rate of pay for this time off, but must notify the employer of any appointments. The employer can ask to see an appointment card or other evidence after the ﬁrst visit and the certiﬁcate signed by the doctor or midwife stating that they are pregnant (MATB1).
Partners of pregnant women are allowed to take unpaid time off work to attend up to two ante-natal appointments. Temporary agency workers also have these rights, after 12 weeks’ working for the same organisation in the same job.
All employees, regardless of length of service or hours of work, are entitled to a period of 26 weeks’ ordinary maternity leave plus a period of 26 weeks’ additional maternity leave. This leave follows straight on from ordinary maternity leave, giving a total of 52 weeks’ statutory maternity leave.
An employee must notify the employer of her intention to take maternity leave by the end of the 15th week before the expected week of childbirth, unless this is not reasonably practicable. The employer should be informed about the pregnancy, the expected date of childbirth and when the employee wants maternity leave to start. The employer must then give her written conﬁrmation of the start and ﬁnish dates for the leave within 28 days of receiving her notiﬁcation of intention to take leave. The member can change their mind about when they want to start maternity leave so long as they give 28 days’ notice, unless this is not reasonably practicable.
Ordinary maternity leave can start any time from the 11th week before the expected week of childbirth. However, if the expectant mother is absent for pregnancy-related reasons in the four weeks before the expected date of childbirth, the employer can require her to start her maternity leave from the ﬁrst date of absence.
No employee has to take a whole year’s leave, although there is a period of compulsory maternity leave that lasts for two weeks from the date of childbirth, or four weeks for factory work. If an employee wishes to return earlier than a year she must give her employer at least eight weeks’ notice of her intended return date.
During ordinary maternity leave, the employee is entitled to beneﬁt from the same terms and conditions of employment that would have applied if she had been at work, except for the terms providing wages or salary. For instance, this means that holiday entitlement will continue to accrue, although it is not possible to take holiday entitlement during maternity leave, and pay rises such as cost of living rises or salary increments should apply.
It is not necessary to give notice of return from maternity leave. The employer should assume that the expectant mother will take their full leave. To return to work earlier, at least eight weeks’ notice should be given. If the employee does not wish to return to work after maternity leave, they must give their normal notice.
There is a right to return to the same job after ordinary maternity leave, with the same terms and conditions, unless a redundancy situation has arisen, in which case the employee is entitled to a suitable and appropriate alternative vacancy on terms and conditions that are not substantially less favourable than applied to her original job.
It is slightly different if the employee is returning after additional maternity leave. They are entitled to return to same job and the same terms and conditions, unless a redundancy situation has arisen, or there is another reason why it is not reasonably practicable for the employer to give them back their original job. In these circumstances they are entitled to be offered suitable alternative work on no less favourable terms and conditions.
There is no automatic right to return to work part- time after maternity leave, but employees can request to work part-time (or in another ﬂexible manner) under the Flexible Working Regulations.
Employees who are pregnant or have just given birth are entitled to a maximum of 39 weeks’ statutory maternity pay (SMP), regardless of whether they intend to return to work. However, they must have worked for their employer for a continuous period of at least 26 weeks, ending with the qualifying week of 15 weeks before the expected week of childbirth, and their average weekly earnings in the eight weeks up to and including the qualifying week must have been at least equal to the lower earnings limit for national insurance contributions (which changes every year in April).
Those who do not qualify for SMP may be entitled to maternity allowance instead or universal credit.
The ﬁrst six weeks of SMP are paid at 90 per cent of the employee’s average weekly earnings.
The remaining 33 weeks are paid at the SMP standard rate (£151.20 in 2020/21 – the amount paid is reviewed every April by the government).
This will be paid through the employer. This is paid regardless of whether the employee returns to work.
These levels are the minimum and unions should seek to ensure that employers provide maternity pay above the statutory level.
It is unlawful for an employer to dismiss, or to treat any employee unfairly, because they are pregnant, or have given birth, or because they intend to take, are taking, or have taken advantage of any of their statutory maternity rights. Also, it is unlawful to dismiss an employee if they do not return to work from maternity leave if they have been given insufficient, or no notice of when their maternity leave should end.
It is possible for a woman to be selected for redundancy during her maternity leave. However, her selection must have nothing whatsoever to do with her pregnancy, or with her having exercised any of her maternity rights. If there is a suitable available vacancy when she is selected for redundancy, it must be offered to her.
The law on this can be quite complicated and the TUC would recommend that you seek advice from your union on this if any cases arise.
Employers have extra requirements to protect the health safety and welfare of new or expectant mothers at work regardless of length of service. In any workplace where there are women of child-bearing age, the employer should carry out an additional risk assessment to ﬁnd out if anything at the workplace could cause harm to new or expectant mothers and their unborn children, or children being breast-fed. If a risk is identiﬁed, the employer must inform their employees of any risk and ask employees to notify them if they are pregnant as early as possible.
If the risk cannot be avoided or removed, your employer should take further steps to protect the woman’s health and safety. This can include changes to their working conditions, or hours, or an offer of suitable alternative employment. If this is still not sufficient to remove the risk the employee must be suspended from work on full pay for as long as it is necessary to protect their health and safety.
Statutory paternity leave is absence from work for the purpose of caring for a new-born child or for supporting the child’s mother. To qualify, an employee must be the child’s father or the spouse or partner, same or opposite sex, of the child’s mother; have or expect to have responsibility for the child’s upbringing; have been continuously employed by their employer for at least 26 weeks ending with the 15th week before the expected week of birth, and give proper notice and evidence to their employer.
An employee may choose to take either one or two consecutive weeks’ paternity leave. Statutory paternity leave must be taken within 56 days of the child’s birth and cannot start before the birth.
The father or partner must give their employer notice of their intention to take paternity leave by the end of the 15th week before the expected week of the birth. The notice must specify the expected week of the birth, the length of leave they wish to take and the date they wish their leave to begin.
The employer can request a signed declaration that the purpose of the absence is to care for a child or to support the child’s mother, that the person is the child’s father or the mother’s partner; and that they have the main responsibility for the child’s upbringing.
The start date can be changed by giving the employer 28 days’ notice in writing if requested.
In addition, the employee must give the employer notice of the birth as soon as is reasonably practicable after the date child was born.
As with maternity leave, the employment contract will continue during statutory paternity leave.
Employees are entitled to the beneﬁt of their normal terms and conditions of employment, except terms relating to their normal salary.
In addition to paternity leave, an employee will be entitled to Statutory Paternity Pay if they are the child’s father or the spouse or partner of the child’s mother; have or expect to have responsibility for the child’s upbringing; have been continuously employed by the same employer for at least 26 weeks ending with the 15th week before the expected week of the birth; have been employed by the same employer from the end of the 15th week before the expected week of birth to the date of the birth; and have earnings at least equal to the lower earnings limit for National Insurance Contributions for eight weeks ending with the 15th week before the expected week of the birth.
Statutory paternity pay is a weekly payment made by employers to eligible employees for one or two weeks.
To apply for statutory paternity pay an employee must complete form SC3 – Becoming a Parent – and must give their employer at least 28 days’ notice of the date from which they wish the payment to start.
The weekly rate of statutory paternity pay is £151.20 (for 2020/21) or 90 per cent of weekly earnings if that is lower.
Statutory adoption leave (SAL) is available to adoptive parents to prepare for adoption or to care for a newly placed adoptive child.
An employee will be entitled to take SAL if they have been matched with a child for adoption; have notiﬁed the adoption agency that they agree that the child should be placed with them on the placement date; have been continuously employed by the same employer for at least 26 weeks ending with the week they are notiﬁed of the match; and give notice and evidence to their employer.
Adoption leave can start on the placement date or up to 14 days before the placement date. The maximum length of SAL is 52 weeks comprising ordinary adoption leave of 26 weeks and additional adoption leave of 26 weeks.
The employer must be given notice of intention to take SAL within seven days of the employee being notiﬁed of the match. The notice must be in writing if requested by the employer and must state an intention to take adoption leave, the date when leave will begin and the expected date of placement.
The employer is entitled to request the name and address of the agency, the name and date of birth of the child, and the date the employee was notiﬁed of the match.
The start date for leave can be changed by giving the employer 28 days’ notice.
Within 28 days of receiving notice of the intended adoption leave start date, the employer must notify the employee of the date the leave will end. Adoption leave will last for 52 weeks unless they return to work early or the placement is disrupted.
An employee will also be entitled to statutory adoption pay (SAP) if: the child is, or is expected to be, placed for adoption with them; they have been continuously employed by the same employer for at least 26 weeks ending with the week they are notiﬁed of the match; they stop work; their weekly earnings for the eight weeks ending with the week they are notiﬁed of the match are at least equal to the lower earnings limit for national insurance contributions; and they have asked to receive statutory adoption pay.
SAP must be applied for at least 28 days before the employee wants the payment to begin. SAP can start on either the date the child is placed or on a speciﬁc date up to 14 days before the placement date.
Statutory adoption pay will be paid on a weekly basis for 39 weeks or, if earlier, until the day the employee returns to work, or for eight weeks after the end of the week the placement is disrupted.
The weekly rate of SAP is the same as for statutory maternity pay and statutory paternity pay. There is also a right to statutory paternity leave for adoption for the purpose of caring for a newly placed adoptive child or to support the main adopter. This is available where an employee is the spouse or partner of the adopter and has responsibility for the child’s upbringing. They must have been continuously employed by their employer for at least 26 weeks ending with the week the child’s adopter is notiﬁed of the match and have to give notice and evidence to the employer.
The employee can choose to take either one or two consecutive weeks’ paternity leave for adoption. If eligible, they will receive statutory paternity pay for one or two whole weeks. Adoption leave is a day one right and payment is in line with statutory maternity pay.
Primary adopters can take paid time off to attend up to ﬁve pre-adoption appointments and secondary adopters can take unpaid time off to attend up to two appointments.
Employees have these time off rights from day one. Temporary agency workers have these rights after 12 weeks’ working in the same role for the same organisation.
Mothers and adopters can choose to end their 52 weeks’ maternity or adoption leave early and convert any remaining entitlement into shared parental leave and pay. Mothers and adopters must take at least two weeks’ maternity or adoption leave (or four weeks if they work in a factory) so the maximum amount of SPL that can be created is 50 weeks and the maximum amount of pay is 37 weeks.
SPL can be used by either parent, so it gives the father of the child, or the mother or adopter’s partner, the opportunity to take more time off in the ﬁrst year than just two weeks’ paternity leave. SPL can also be taken more ﬂexibly than maternity or adoption leave. So, for example, a mother may decide to convert some of her maternity leave into SPL and she may use it to go back to work for a month and then take some more time off later, or she and her partner might both decide to take SPL at the same time.
If an employer provides higher contractual pay for women on maternity leave or for adopters on adoption leave, reps may want to push for the same to apply to SPL. It is very important that employees check policies or collective agreements to ﬁnd out whether contractual pay is available to those taking SPL, otherwise employees could lose out by converting their maternity or adoption leave into SPL.
A binding legal ruling has now established that it is not sex discrimination (either direct or indirect) for an employer to pay a woman on maternity leave enhanced contractual maternity pay while only paying a man on SPL at the statutory rate. This means that any improvements to pay while on SPL will need to be achieved through collective bargaining.
It is up to the mother or adopter to decide whether to keep taking their maternity or adoption entitlement or to convert it into shared parental leave. A father or partner has no right to SPL if the mother or adopter has not brought their maternity or adoption leave to an early end, or notiﬁed their employer that they intend to do so.
Only employees with the necessary 26 weeks’ service with their employer by the 15th week before the due date or adoption placement will be able to take SPL.
Shared parental leave may be taken at any time within the period which begins on the date the child is born/date of the placement and ends 52 weeks after that date
An employee is entitled to submit three separate notices to book SPL. Leave must be taken in complete weeks. An employee can request multiple blocks of leave in a single booking notice.
If they do request multiple blocks of leave in a single notice, the employer can refuse it. However, if a single block of leave is requested in a single booking notice then the employer cannot refuse it.
If a request for multiple blocks of leave is refused, then the total amount of leave requested in the notice will automatically become a continuous block and begin from the ﬁrst date of leave that was requested, unless the request is withdrawn and resubmitted by the employee.
Statutory shared parental pay is paid at £151.20 (in 2020/21) or 90 per cent of your average weekly earnings (whichever is lower).
If the mother or adopter curtails their entitlement to maternity/ adoption pay or maternity allowance before they have used their full entitlement, then statutory shared parental pay can be claimed for any remaining weeks.
To qualify for statutory shared parental pay a parent must pass the continuity of employment test and have earned an average salary of the lower earnings limit of £120 (2020/21) for the eight weeks' prior to the 15th week before the expected due date or matching date (the lower earnings limit is adjusted every year in April).
The other parent in the family must meet the employment and earnings test.
Both men and women employees with one year’s service have a right to take unpaid leave to care for their children. Eighteen weeks’ unpaid leave per child can be taken in total. A maximum of four weeks’ leave for each child every year can be taken in blocks or multiples of a week, unless the child is entitled to disability living allowance or a collective agreement or relevant workforce agreement provides for the leave to be taken on a more ﬂexible basis. Parents of a child with a disability can take the leave a day at a time or longer if they want. Leave can be taken any time up to and including the child’s eighteenth birthday.
On return to work following a period of up to four weeks’ parental leave, the employee is entitled to return to the post in which they were previously employed. Where a period of parental leave, taken together with other types of leave, is greater than four weeks, then the employee is entitled to return to the same post unless this is not reasonably practicable, in which case, they must be allowed to return to another post which is both suitable and appropriate for them in the circumstances. The terms and conditions must not be less favourable than would have applied had the employee not been absent on parental leave.
The employer can ask for 21 days’ notice of taking parental leave and can postpone the leave by up to six months if the employer can show it would cause signiﬁcant disruption to the business.
The leave cannot be postponed where a father asks to take leave immediately following a birth, or an adopter asks to take leave immediately following an adoption.
All employees have a legal entitlement to take unpaid time off to deal with incidents involving employees’ dependants. A dependant is deﬁned as:
A dependant is also any person who reasonably relies on the employee for assistance on an occasion when the person falls ill or is injured or assaulted, or to make arrangements for the provision of care in the event of illness or injury.
This will include, for example, elderly relatives, or same-sex or opposite sex partners not living in the same household but reliant on the employee to assist them in the event of illness or injury.
A dependant is also any person who reasonably relies on the employee to make arrangements for the provision of care.
No qualifying period of service is required, and all employees will have the right to time off. A “reasonable” amount of unpaid time off is allowed, although there is no deﬁnition of what is “reasonable” and it will, therefore, vary according to each case and each set of circumstances.
Since 6 April 2020, all employed parents have had a statutory right, from day one of their employment, to a maximum two weeks’ bereavement leave if they lose a child under the age of 18 or suffer a stillbirth from 24 weeks of pregnancy.
Employees with at least 26 weeks’ continuous service whose weekly earnings average at least the lower earnings limit (£120 in 2020/21) in the eight weeks leading up to the bereavement are entitled to two weeks’ statutory bereavement pay of £151.20 a week (April 2020) or 90 per cent of weekly earnings if less.
Employees taking this leave are protected from dismissal or detriment.
The new law uses a wide definition of parent, based on parental responsibility. It is not limited to biological parents and can include adopters, foster parents and guardians and “parents in fact”, such as a close relative or family friend who has assumed parental responsibility.
There are rules on giving notice. The employee must provide the date of the child’s death, the date they want their absence to begin and state whether they are intending to take one or two weeks of leave. There is no need to provide a copy of the child’s death certificate.
To claim statutory bereavement pay, the employee must give written notice to their employer within 28 days of taking the leave or where that is not possible, as soon as reasonably practicable. When giving notice, the employee must provide their name, the date of death and a declaration that they are eligible for statutory bereavement pay.
A woman who suffers a stillbirth after 24 weeks of pregnancy is also entitled to all the normal maternity leave and pay rights described above.
So is a woman who loses her child during her maternity leave.
Negotiating support for parents and carers
Good employers will recognise that the rights that employees have to time off are legal minimums and that it makes good sense to ensure that those with family responsibilities are given the support and time-off they need. This helps retain staff and employers who promote “work-life balance” will find that they have a happier more productive workforce.
In addition, maternity, paternity and adoption provision is not a gift from the employer it is a statutory right.
Employers get back 92 per cent of these statutory payments, or 104.5 per cent if they are a small employer.
Union reps are the key to ensuring that their members are not faced with a range of bureaucracy when they need to take time off for family reasons. Ensure that you know what rights your members have – not only legal rights but any other agreements that may apply. Many larger employers provide contractual pay during leave or give increased parental or carers’ leave, especially if they are unionised. Also, make sure your members know what rights they have and how to access them.
You can also try improving what you have. Your union may well have advice on their website.
However, you should try to get information about the workforce and the problems that parents, prospective parents and carers’ experience.
If you have union recognition, you are entitled to bargaining information from your employer. This could include asking: what proportion of women return to work after maternity leave, how long women tend to take off work on maternity leave, what proportion of men take paternity leave and shared parental leave and how long do they tend to take?
You could also try a survey to find out what the priorities of the members are and what problems the current provisions have caused them.
Examples of improvements that have been negotiated include:
Go to “Working, jobs and pensions” and then follow the links from there.
Health and Safety Executive (HSE)
You can ﬁnd advice on pregnancy and risk assessment
The commission also provides advice and information on issues relating to workplace discrimination in England, Scotland and Wales, including telephone helplines
Advice to pregnant women and new parents on their website, plus a free helpline on 0808 802 0029 Monday to Friday 11am–2pm.
A free, conﬁdential helpline for parents and carers on 0300 012 0312.
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