URN No: 06/567/A1
CONTENTS
For Sections 1-4 please go to:
Section 5: Protection from detriment and dismissal
5.1 Protection from detriment
Detriment can cover a wide range of discriminatory actions, such as denial of promotion, facilities or training opportunities which the employer would otherwise have offered or made available.
An employer cannot subject an employee to a detriment because he or she:
took parental leave,
sought to take parental leave,
or because the employee has:
declined to sign a workforce agreement on parental leave,
performed, or proposed to perform, any functions or activities as a representative or candidate in connection with such an agreement.
Employees who suffer unfair treatment at work for the above reasons may make a complaint to an employment tribunal.
5.2 Protection from dismissal
Dismissal means the termination of employment by the employer, with or without notice. It could also include constructive dismissal, where the employee has resigned because the employer has breached the contract of employment. Or, it could include the expiry of a fixed-term contract without its renewal. Unfairly dismissed? sets out more fully the meaning of dismissal.
It is unlawful for an employer to dismiss an employee because he or she:
took parental leave,
sought to take parental leave,
or because the employee has:
declined to sign a workforce agreement on parental leave,
performed, or proposed to perform, any functions or activities as a representative or candidate in connection with such an agreement.
An employee dismissed or selected for redundancy in these circumstances is entitled to make a complaint of unfair dismissal to an employment tribunal
Section 6: Enforcement through employment tribunals
6.1 Grounds for making a complaint
An employee has grounds for making a complaint to an employment tribunal if the employer:
unreasonably postpones a period of parental leave requested by the employee;
prevents, or attempts to prevent, the employee taking parental leave;
subjects the employee to detriment in connection with parental leave;
dismisses the employee in connection with parental leave.
6.2 Resolving disputes
An employee who believes that he or she is entitled to make a complaint to an employment tribunal (see 6.3 below) should first seek to resolve the matter by mutual agreement with the employer - 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. However, it should be noted that the time limit for making a complaint to an employment tribunal will still apply and will not normally be extended to allow for the fact that attempts have been made to settle the matter in advance.
The employee and employer may also seek advice from a conciliator of the Advisory, Conciliation and Arbitration Service (Acas), (the helpline number is given in Section 8 of this document).
6.3 Complaints to employment tribunals
The complaint should normally be made within three months of the employer’s postponement of parental leave or refusal to allow the employee to take parental 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 go to a local Employment Service Jobcentre to obtain a copy of the booklet How to apply to an employment tribunal containing a copy of the application form IT1 – or IT (Scot) in Scotland – which explains the procedure and gives the address of the employment tribunal office to which the completed form should be sent.
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’s association, a relative or a friend – this is permitted.
6.4 Remedies
Where an employee complains that his or her request for parental leave has been unreasonably postponed, or that he or she has been refused parental leave, or prevented from taking parental 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 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? and Dismissal - fair and unfair: a guide for employers. Limits on payments - Guidance sets out the financial limits payable on compensation awards for unfair dismissal.
6.5 Enforcing agreements
Both employers and employees are bound by an agreement provided it has been incorporated into the contract of employment. An employee may seek legal redress if his or her employer breaches the contract of employment.
Contracts of employement: changes, breach of contract and deductions from wages explains the means of redress available to both employees and employers in these circumstances.
Section 7: Other help employees can get during parental leave
7.1 Claiming income support during parental leave
Income Support can be paid to people who have a low income or no income at all. There are qualifying conditions which all claimants must meet in order to receive Income Support. For example, savings should not exceed £8,000 and the employee’s partner (if he or she has one) should not be working. The Social Security leaflet Babies and Children (BC1) sets out further details of benefits which might be available for people with children.
Unless the employee is a disabled or lone parent, employees need to satisfy additional conditions in order to qualify for Income Support during parental leave. Claimants must be receiving either Working Tax Credit and Child Tax Credit, or Housing Benefit, or Council Tax Benefit immediately before taking parental leave. In addition, the following conditions apply:
the leave must be unpaid;
the leave should not exceed 13 weeks in total (18 weeks for parents of disabled children), and no more than four weeks in any one year;
the leave is taken to look after a child who lives with the claimant and is the claimant’s own child;
in the case of an employee whose child is born or adopted on or after 15 December 1999, the leave is taken by the child’s fifth birthday, or up to five years from the placement date for adoption, or the adopted child’s 18th birthday if this is sooner;
in the case of an employee whose child was born or adopted between 15 December 1994 and 14 December 1999, the leave is taken by 31 March 2005, or by an adopted child’s 18th birthday if this is sooner;
in the case of an employee for whose child disability living allowance has been awarded, taken by the child’s 18th birthday.
Employees will need to provide some details about their family and incomes to their local Jobcentre Plus or local social security office, as well as evidence about their leave from their employer.
The local Jobcentre Plus or local social security office will provide a claim form for the employee to complete, which will ask for information on such issues as details of income or receipt of qualifying benefits.
Employees will need to ask their employer to confirm in writing that the employee is taking parental leave and the dates when the leave starts and ends.
7.2 Other benefits
Jobseeker’s Allowance is a benefit for people who are unemployed and are looking for work. Employees may be able to claim Jobseeker’s Allowance during parental leave. More information about Jobseeker’s Allowance can be obtained from leaflet JSAL5 Helping you back to Work, which is available from Jobcentre Plus offices.
Housing Benefit 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 or she may already be receiving these benefits. If an employee’s income is stopped or reduced during parental leave, or the employee receives Income Support, he or she may be entitled to Housing and Council Tax benefit. If an employee already receives these benefits, he or she 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.
7.3 Child Tax Credit and Working Tax Credit
Child Tax Credit and Working Tax Credit are administered by the Inland Revenue and have been payable since April 2003. 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 people on low incomes by topping up earnings. It includes support for the cost of qualifying childcare. Depending on household income, parents may be entitled to Working Tax Credit if they are normally engaged in qualifying remunerative work for at least 16 hours a week.
People taking parental (or any other unpaid) leave are not engaged in qualifying remunerative work during that leave. But they may still qualify for Working Tax Credit, if the leave does not last long enough to alter their “normal working hours”. As a general rule the Inland Revenue would not regard parental (or other unpaid) leave lasting up to 4 weeks as altering a person’s normal working hours.
Section 8: Where to find further information
8.1 Useful telephone numbers and websites
Acas helpline - 08457 47 47 47
Working Families’ Tax Credit helpline - 0845 609 5000
Disabled Person’s Tax Credit helpline - 0845 605 5858
Childcare Link - 08000 96 02 96 (freephone helpline for childcare information)
Parentline - 0808 800 2222 (confidential freephone helpline run by Parentline Plus, providing support to families)
Tommy’s the baby charity - 0870 777 30 60 (information and advice on pregnancy health matters)
Equal Opportunities Commission (EOC)- Arndale House, Arndale Centre, Manchester M4 3EQ.
Tel: 0845 601 5901, fax: 0161 838 1733
EOC (Scotland)- St Stephens House, 279 Bath Street, Glasgow G2 4JL
Tel: 0845 601 5901, fax: 0141 248 5834
EOC (Wales) - Windsor House, Windsor Place, Cardiff CF10 3GE
Tel: 029 2034 3552, fax: 029 2064 1079
Commission for Racial Equality- St Dunstan's House, 201-211 Borough High Street, London SE1 1GZ Tel 020 7939 0000, fax 020 7939 0001
Disability Rights Commission- Freepost MID02164, Stratford-upon-Avon, CV37 9BR
Tel: 08457 622 633
