WORKING
FATHERS (PL517)
Rights to
leave and pay: a guide for employers and employees
Section
8: Enforcement through employment tribunals
What
should an employer or employee do if they disagree about entitlement to
paternity leave?
They
should first seek to resolve the matter by mutual agreement – perhaps through
the business’s own grievance or appeals procedure, where one exists. If an
employee does not try to resolve the problem in this way, any compensation
awarded by an employment tribunal at a later stage may be reduced.
If the matter can’t be sorted out, both employer and employee can contact the
Advisory, Conciliation and Arbitration Service (ACAS) helpline on 08457 47 47 47
for help. They can both seek the services of an ACAS conciliator before the
employee makes an application to a tribunal.
Under
what circumstances can an employee complain to an employment tribunal?
If
the matter cannot be settled between employer and employee, the employee may
want to bring a case to an employment tribunal if he has grounds for doing so.
He will have grounds for making a complaint to an employment tribunal if the
employer:
•
prevents, or attempts to prevent, him taking paternity leave;
•
subjects him to detriment in connection with paternity leave (see
Section 7);
•
dismisses him in connection with paternity leave (see Section 7).
Employees
should bear in mind that the time limit for making a complaint to an employment
tribunal (see next page) will still apply and will not normally be extended
because attempts have been made to settle the matter in advance.
What
is the procedure for making a complaint to an employment tribunal?
The
complaint should normally be made within three months of the refusal to allow
the employee to take paternity leave, or of the detriment or dismissal. Where
the detriment suffered is due to the employer’s failure to act or provide a
benefit, the complaint should be made within three months of the failure to
act.
An
extension to the time limit can be granted only in exceptional circumstances,
where the employment tribunal is satisfied that it was not reasonably
practicable for the complaint to have been made any earlier.
An
employee who wishes to make a complaint to an employment tribunal should obtain
a copy of the explanatory leaflet How to apply to an employment tribunal which
contains a copy of the application form IT1 (or IT1 (Scot) in Scotland). The
leaflet explains the procedure and gives the address of the employment tribunal
office to which the completed form should be sent. The booklet is available from
Jobcentre Plus/Social Security offices, Citizens Advice Bureaux, from the DTI
Publications Orderline on 0870 1502 500, or from the Employment Tribunals Service website.
When
the employment tribunal office receives the completed form, it will send a copy
to a conciliator at ACAS who will try to help the two sides to reach a
settlement of the complaint.
If
conciliation is not possible or fails, the employment tribunal will hear the
case, and both parties should attend the hearing. They may claim travelling
expenses and other expenses within certain limits. Employment tribunal hearings
are conducted informally and in a way which makes it easy for the parties to
present their own case if they wish to do so.
However,
if either party wants to be represented – whether by a lawyer or by someone
else such as a trade union, an employer association, a relative or a friend –
this is permitted.
What
remedies does the employment tribunal have?
Where
an employee complains that he or she has been refused paternity leave, or
prevented from taking paternity leave, and the tribunal finds the complaint
well-founded, it will make a declaration to that effect and may order the
payment of compensation.
Where
an employee complains that he or she has been subjected to a detriment and the
tribunal finds the complaint well-founded, it can make a declaration to that
effect and may order the payment of compensation. There
is no limit on awards in cases of detriment. It is for the tribunal to decide
the appropriate award, taking account of the loss suffered by the applicant.
Where
a tribunal finds that the employee was unfairly dismissed or selected for
redundancy, it will order re-instatement or re-employment, or the payment of
compensation. For further details of remedies in cases of unfair dismissal, see
Unfairly dismissed? (PL 712) and Dismissal – fair and unfair: a guide for
employers (PL 714). The document Limits on payments (PL 827) sets out the
financial limits payable on compensation awards for unfair dismissal.
Section
9: Other benefits and time off rights for employees expecting a baby
| Note:
Employees should first check with their employer to see if they are
entitled under their contract to take paid time off when their baby is
born. |
What
financial benefits may employees be entitled to at the time of the birth of
their child other than Statutory Paternity Pay?
Income
support may be payable to people who have a low income (including some of those
on Statutory Paternity Pay) or no income at all. There are qualifying conditions
which all claimants must meet in order to receive it: for example, savings
should not exceed £8,000 and the employee’s partner should not be working. A
guide to Income Support IS20 gives further information and is available from the
local Jobcentre Plus/Social Security Office.
Housing and Council Tax Benefit are income related benefits designed to
help meet the costs of rent and council tax. If an employee is on Income Support
or on a low income and is liable to pay either rent or council tax, then he may
already be receiving these benefits. If an employee’s income is stopped or
reduced during paternity leave, or the employee receives Income Support, he may
be entitled to Housing and Council Tax Benefit. If an employee already receives
these benefits, he may be entitled to an increase in the benefit. Further advice
or leaflet RR2 on Housing and Council Tax Benefit can be obtained from a local
authority.
Child
Tax Credit and Working Tax Credit
are two tax credits administered by the Inland Revenue and payable from 6 April
2003.They replace, among other things, the Children’s Tax Credit, Working
Families’ Tax Credit and Disabled Person’s Tax Credit. Both
tax credits are based on household income. Child Tax Credit is a way to claim
money for children whether or not the claimant is in work.
Working
Tax Credit supports working households on low incomes by topping up earnings. It
includes support for the cost of qualifying child care. Depending on household
income, a worker may be entitled to Working Tax Credit if he or she normally
works at least 16 hours a week, provided he or she is responsible for a child or
has a disability. If the worker does not have a child or a disability, he or she
must be aged at least 25 and work 30 or more hours a week to qualify.
People
receiving Statutory Maternity Pay, Statutory Paternity Pay or Statutory Adoption
Pay are treated as being in work for Working Tax Credit purposes as long as they
were working the necessary number of hours (16 or 30, as the case may be)
immediately before they started receiving these payments.
For
more information about Child Tax Credit or Working Tax Credit, or to obtain the
claim forms, phone the Tax Credits Helpline on 0845 300 3900. People with speech or hearing problems using a textphone can dial 0845 300 3909 (England, Scotland and Wales).
An
employee’s pregnant partner may be eligible for Statutory Maternity Pay or, if
her earnings are below the required amount or she is self-employed, Maternity
Allowance. The duration of these benefits is being extended from eighteen to
twenty-six weeks for women whose babies are due in a week beginning on or after
6 April 2003. Pregnant employees may also be eligible for a Sure Start Maternity
Grant. A guide to Maternity benefits NI17A gives further information on these benefits and is
available from Jobcentre Plus/Social Security offices the Department
for Work and Pensions.
What
time off rights do employees have apart from Paternity leave at the time of the
birth of their child?
The
right to time off for dependants gives all employees 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. The document Time off for dependants (URN 99/1186)
(96Kb) provides more detail on this
new right.
The
right to parental leave
gives employees – both mothers and fathers – who have completed one year’s
continuous service with their employer the right to up to thirteen weeks’
unpaid parental leave to care for their child between the birth and the
child’s fifth birthday. In cases of adoption, the leave can be taken up to
five years from the placement of the child, or up to the child’s 18th birthday
if that is sooner. Parents of disabled children can take up to eighteen weeks’
parental leave up to the child’s 18th birthday. Further information is available in
Parental leave (PL 509)
(228Kb)
Changes
to the rights to maternity leave
give all pregnant employees whose babies are due on or after 6 April 2003 the
right to a period of ordinary maternity leave increased from eighteen to
twenty-six weeks (regardless of how long they have worked for their employer),
in line with the period for Statutory Maternity Pay and Maternity Allowance (see
above). At
the same time the qualifying period for additional maternity leave (lasting
twenty-six weeks from the end of ordinary maternity leave) is reduced –
employees who have worked continuously for their employer for twenty-six weeks
by the fifteenth week before the week their baby is due will qualify. Additional
maternity leave is usually unpaid although employees may have contractual rights
to pay during this period. The
document Maternity rights
(PL 958)
(590Kb) gives guidance on existing maternity rights
and the changes.
The
right for parents of young or disabled children to request
flexible working gives eligible employees (from 6 April 2003) who are parents of children aged under six or of disabled children aged under eighteen the right to apply to work flexibly. Their employers must take such requests seriously. The document
Flexible working: the right to apply (PL 516) gives further information. At the time of publication this is still subject to Parliamentary approval.
Section
10: Where to find further information
The
Advisory, Conciliation and Arbitration Service (Acas)
The
Inland Revenue (for more information on Statutory Paternity Pay)
Department
for Work and Pensions (for more information on benefits available to expectant mothers and families)
TIGER
(Interactive guidance on employment rights (including employer and employee
guidance on maternity, paternity and adoption rights
Other
useful organisations
Equality direct (for queries from employers on equality issues in England)
Equal Opportunities Commission (EOC) (for queries from employees on sex
discrimination legislation)
Commission
for Racial Equality
Disability Rights Commission
Childcare Link
Maternity Alliance (information and advice on all aspects of maternity and
parental rights and benefits)
Tommy's the baby charity (information and advice on pregnancy health matters)
Employment Tribunals Service (advice on employment tribunals procedures)
Fathers Direct
Tax Credits Helpline
Tel: 0845 300 3900
Textphone: 0845 300 3909
Parentline (confidential freephone helpline run by Parentline Plus, providing
support for families)
Tel: 0808 800 2222
Community Legal Service
Tel: 0845 608 1122
Low Pay Units
Scottish: 0141 221 4491
West Midlands: 0121 643 3972
Pay and Employment Rights Service
Yorks and Humberside: 01924 439 381
Other
employment legislation publications
Model self-certificate
(37Kb)
(Inland Revenue website)
|
