EMPLOYMENT LEGISLATION

INDIVIDUAL RIGHTS OF EMPLOYEES: A GUIDE FOR EMPLOYERS AND EMPLOYEES - PL 716 (REV 11)

Parental legislation 

Maternity rights

All employees have the right not to suffer unfair treatment at work on grounds of pregnancy or maternity. The document Maternity rights (PL958) (285Kb) brings together information on maternity leave, maternity pay, protection from detriment or dismissal and the health and safety at work of new and expectant mothers.

Time off for antenatal care

All pregnant employees are entitled to time off with pay to keep appointments for antenatal care made on the advice of a registered medical practitioner, midwife or health visitor. Antenatal care may include relaxation classes and parentcraft classes. Except for the first appointment, the employee must show the employer, if requested, a certificate from a registered medical practitioner, midwife or health visitor, confirming the pregnancy and an appointment card or some other document showing that an appointment has been made.

Ordinary maternity leave

An employee is entitled to a period of 26 weeks' ordinary maternity leave, regardless of her length of service. To qualify, she must tell her employer no later than the end of the 15th week before the expected week of childbirth:

• that she is pregnant;
• the expected week of childbirth, by means of a medical certificate if requested;
• the date she intends to start maternity leave; this can normally be any date which is no earlier than the beginning of the 11th week before the expected week of childbirth up to the birth.

Her employer should in turn notify her of the date on which her leave will end within 28 days of receiving her notification. If the employer fails to do this, the employee may have protection against detriment or dismissal if she does not return to work on time.

An employee can change the date she wants her leave to start as long as she notifies her employer 28 days before the date she originally chose or, if it is earlier, 28 days before the new date she wants her leave to start.

During the 26 weeks, she is entitled to benefit from all her normal terms and conditions of employment, except for remuneration (monetary wages or salary); and at the end of it, she has the right to return to her original job. If a redundancy situation arises, she must be offered a suitable alternative vacancy if one is available. If the employer cannot offer suitable alternative work, she may be entitled to redundancy pay; but if she unreasonably refuses a suitable offer, she could forfeit her right to redundancy pay. 

Additional maternity leave

Employees with at least 26 weeks' continuous service by the beginning of the 14th week before the expected week of childbirth are entitled to 26 weeks' additional maternity leave. Their contract of employment continues but with limited terms and conditions.

The additional maternity leave period begins at the end of ordinary maternity leave. This means a woman is entitled to be away from her job for 52 weeks in total. She does not have to notify her employer before the start of her ordinary maternity leave that she also intends to take additional maternity leave. However, when her employer notifies her of the end date of her leave, they will have based their calculation on the assumption that, if she is entitled to additional maternity leave, she will be taking it, and if she wishes to return before she has taken her full 52 weeks' maternity leave she must give at least 28 days notice.

At the end of additional maternity leave a woman is entitled to return to her original job or, if this is not reasonably practicable, to a suitable alternative job. If the employer cannot offer suitable alternative work, she may be entitled to redundancy pay; but if she unreasonably refuses a suitable offer, she could forfeit her right to redundancy pay.

A woman who qualifies for additional maternity leave and who wishes to return to work before the date it is due to end must give at least 28 days' notice, unless her employer didn't give her adequate notice of when her leave should end.

Further guidance can be found in the document Maternity rights (PL958) (285Kb).

Statutory Maternity Pay

A woman is entitled to Statutory Maternity Pay (SMP) if she has been employed by her employer for a continuous period of at least 26 weeks ending with the 15th week before the expected week of childbirth, and has average weekly earnings at least equal to the lower earnings limit for National Insurance contributions. SMP can be paid for up to 26 weeks. SMP is paid by the employer but is partly (or, for small firms wholly) reimbursed by the state.

More information for employees on SMP can be obtained from the Department for Work and Pensions leaflet A guide to Maternity Benefits - Statutory Maternity Pay and Maternity Allowance (NI17A), available from local social security or Jobcentre Plus offices, or through the Department's website. The Inland Revenue provides more information for employers in the their help booklet E15 Pay and time off work for parents (and the E15 supplement), available from its Employer's Orderline on 08457 646 646 and from the Inland Revenue website. Employers may call the Inland Revenue's Employer's Helpline on 08457 143 143.

Maternity Allowance

Women who do not qualify for SMP may be entitled to Maternity Allowance (MA). MA may also be paid to the self-employed and women who have recently left their jobs. MA can be paid for up to 26 weeks. MA is paid by the social security or Jobcentre Plus office. To qualify, they must have been employed or self-employed for 26 weeks out of the 66 weeks before the expected week of childbirth and have average weekly earnings of at least £30. For more information, see details under Statutory maternity pay (above).

Dismissal or detriment in connection with pregnancy

An employer may not dismiss an employee or select her for redundancy on grounds related to pregnancy, childbirth or the fact that she has taken or sought to take maternity leave or because she does not return to work at the end of her leave in circumstances where her employer gives her insufficient or no notice of when her leave should end. A woman dismissed in these circumstances may make a complaint of unfair dismissal, regardless of her length of service. More information about unfair dismissal procedures can be found in the document Fair and unfair dismissal (PL714). There is further guidance on termination of employment during or following maternity leave in the Ordinary maternity leave and Additional maternity leave sections of this guide.

Employees also have the right not to suffer detrimental (unfair) treatment on grounds of pregnancy, childbirth or maternity leave.

Maternity suspension

Employers must take account of health and safety risks to new and expectant mothers when assessing risks in work activity. If the risk cannot be avoided, the employer must take steps to remove the risk or offer suitable alternative work (with no less favourable terms and conditions); if no suitable alternative work is available, the employer must suspend the mother on full pay for as long as necessary to protect her health and safety or that of her baby.

The Health and Safety Executive booklet Management of Health and Safety at Work (L21) contains the relevant regulations and supporting code of practice, and the HSE booklet New and expectant mothers at work (HS(G)122) gives further guidance to employers about assessing health and safety risks to pregnant employees. These are available from HSE Books (tel: 01787 881165) and other booksellers.

More information about maternity suspension provisions can be found in the DTI documents Maternity rights (PL958) (285Kb) and Suspension from work on medical or maternity grounds under health and safety regulations (PL 705).

Parental leave

Employees who have completed one year's service with their employer are entitled to 13 weeks' unpaid parental leave for each child born or adopted. The leave can start once the child is born or placed for adoption with the employee or as soon as the employee has completed a year's service, whichever is later. It may be taken at any time up to the child's fifth birthday (or until five years after placement in the case of adoption). Parents of disabled children can take 18 weeks up to the child's 18th birthday.

Employees remain employed while on parental leave and some terms of their contract, such as contractual notice and redundancy terms, still apply. At the end of parental leave they have the right to return to the same job as before or, if that is not practicable, a similar job which has the same or better status, terms and conditions as the old job; where leave is taken for a period of four weeks or less, the employee is entitled to go back to the same job.

Wherever possible, employers and employees should make their own agreement about how parental leave will work in a particular workplace. Such agreements can improve upon the key elements set out above but they may not offer less.

Employees can complain to an employment tribunal if their employer prevents or attempts to prevent them from taking parental leave. They are also protected from dismissal or detrimental treatment for taking or seeking to take it. Further details can be found in the documents Parental Leave: a short guide for employers and employees (PL510) and Parental Leave: a guide for employers and employees (PL509).

Paternity leave 

Employees who have worked continuously for their employer for 26 weeks leading into the 15th week before the baby is due and also up to the birth of the child are entitled to take one or two consecutive weeks’ paternity leave. To qualify, an employee must be the biological father of the child or the mother’s husband or partner and must have or expect to have responsibility for the child’s upbringing. Leave must normally be completed within 56 days from the birth of the child and must be taken to care for the child or support the mother. 

The partner of an individual who adopts, or the member of a couple adopting jointly who is not taking adoption leave may be entitled to paternity leave.  The qualifying conditions are similar to those given above, except that he or she must have worked for their employer for 26 weeks leading into the week in which the adopter is notified of being matched with a child, and must continue to be employed up to the date of placement of the child for adoption. Leave must be completed within 56 days of the child’s placement. 

During paternity leave employees are entitled to benefit from all their normal terms and conditions of employment except for remuneration (monetary wages or salary) and are entitled to return to the same job at the end of their leave.  

Employees can complain to an employment tribunal if their employer prevents or attempts to prevent them from taking paternity leave.  They are also protected from dismissal or detrimental treatment for taking or seeking to take it. 

Statutory Paternity Pay (birth and adoption) 

During their paternity leave employees may be entitled to one or two weeks’ Statutory Paternity Pay (SPP).  The qualifying conditions for SPP are the same as those for paternity leave but,  in addition, employees must have average weekly earnings at least equal to the lower earnings limit for National Insurance contributions.  SPP is payable by the employer but partly (or, for small firms wholly) reimbursed by the State.  There is no equivalent benefit for employees who do not qualify for SPP or for the self-employed but there are special rules to allow fathers who are entitled to unpaid paternity leave to claim Income Support.  

For further information on paternity leave and pay see Working fathers: rights to paternity leave and pay: a guide for employers and employees (PL 517) or, for adoptive parents, Adoptive parents: rights to leave and pay – a basic summary (PL515).  The Inland Revenue provides more information for employers in the help books E15 and E15 supplement, Pay and time off work for parents or, for adoptive parents, the E16 and E16 supplement, Pay and time off work for adoptive parents, available from its Employers Orderline on 0845 7646 646 and on their website.  Employers may call the Inland Revenue's Employer's Helpline on 08457 143 143.

Adoption leave  

Where a child is placed for adoption on or after 6 April 2003, employees who have worked continuously for their employer for 26 weeks ending with the week in which they are notified of being matched with a child for adoption will be eligible for up to 26 weeks’ ordinary adoption leave followed immediately by up to 26 weeks’ additional adoption leave.  The right is available to individuals who adopt or one member of a couple adopting jointly.  

The employee is required to inform their employers of their intention to take adoption leave within seven days of being notified by their adoption agency that they have been matched with a child for adoption, unless this is not reasonably practicable.  They must tell their employer:

• when the child is expected to be placed with them and

• when they want their adoption leave to start

Employers must respond to the notice within 28 days notifying them of the date on which they expect them to return to work if the full entitlement to adoption leave is taken. They can choose to start leave from the date of the child’s placement or from a fixed date which can be up to 14 days before the expected date of placement. 

During ordinary adoption leave employees are entitled to benefit from all their normal terms and conditions of employment except for remuneration (monetary wages or salary) and are entitled to return to the same job at the end of their leave.  

During additional adoption leave the employment contract continues and some contractual benefits and obligations remain (for example, compensation in the event of redundancy and notice periods). At the end of additional adoption leave employees are entitled to return to their original job or, if this is not reasonably practicable, to a suitable alternative job. If the employer cannot offer suitable alternative work, the employee may be entitled to redundancy pay; but if he or she unreasonably refuses a suitable offer, her or she could forfeit his or her right to redundancy pay.  

Employees who intend to return to work at the end of their full adoption leave entitlement do not have to give any further notification to their employers.  Employees who want to return to work before the end of their adoption leave period must give their employers 28 days’ notice of the date they intend to return. 

Employees can complain to an employment tribunal if their employer prevents or attempts to prevent them from taking adoption leave.  They are also protected from dismissal or detrimental treatment for taking or seeking to take it or if their employer believed they were likely to take it. 

Statutory Adoption Pay  

A person who is adopting a child is entitled to Statutory Adoption Pay (SAP) if he or she has been employed by their employer for a continuous period of at least 26 weeks ending with the week in which they are notified by the adoption agency that they have been matched with a child for adoption, and they have an average weekly earnings at least equal to the lower earnings limit for National Insurance contributions.    

For further information on adoption leave and pay see Adoptive parents: rights to leave and pay – a basic summary (PL515).  The Inland Revenue provides more information for employers in the help book E16 and the E16 supplement, Pay and time off work for adoptive parents, available from its Employers Orderline on 0845 7646 646 and on their website    

The right to apply to work flexibly and the duty on employers to consider requests seriously  

From April 2003, parents of children under six or disabled children under 18 have the legal right to request flexible working patterns and their employers will have a duty to seriously consider their requests. In order to qualify for this right an individual must:  

• be an employee;

• have a child under six, or 18 where the child is disabled;

• make the request no later than two weeks before the child’s appropriate birthday;

• be responsible for the child as its parent;

• be making the application to enable them to care for the child;

• have worked for their employer continuously for 26 weeks at the date the application is made;

• not be an agency worker or a member of the armed forces;

• have not made another application to work flexibly under the right during the past 12 months.

Applications must be in writing. Information that must be provided includes an explanation of what effect, if any, the employee thinks the proposed change would have on the employer and how, in their opinion, any such effect might be dealt with. The employer must follow a defined procedure to consider the request. In the first instance, they must ensure that they arrange to meet with the employee to discuss the request within 28 days of receiving the application.

If the request is agreed, the new working pattern forms a permanent change to the employee's terms and conditions.   

Employers can reject an application where they have a clear business reason to do so. Acceptable business grounds are specified in law and an employer must provide a written explanation setting out why the ground applies in the circumstances. Employees whose applications are turned down will be able to appeal against their employer’s decision, and in specific circumstances can take their case to Acas Arbitration or an employment tribunal.  

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Last updated 4 January 2005