Employment Law Solicitors:

Maternity and Paternity Rights

Maternity Rights
There are 6 basic maternity rights which are as follows:-

1. Not to be dismissed re pregnancy/childbirth
   Such dismissals are deemed automatically unfair.

    

2. Right to maternity leave
   Entitled to 26 weeks maternity leave (known as 'ordinary maternity leave' (OML)) regardless of how long they have worked for the employer (continuous employment will include the period of maternity leave) and they can take a further 26 weeks of additional maternity leave (AML), again regardless of how long they have worked for the employer. It is the employees choice as to when they take their maternity leave, but it cannot begin before the 11th week prior to the anticipated week of the birth and it starts automatically once they are off work for a reason connected to the pregnancy or even the birth itself from the beginning of the sixth week prior to the anticipated week of the birth. Once the employee decides to take her maternity leave, the employee must give the employer 28 days notice in writing of the start date (the written notice should include: the fact that they are pregnant, the anticipated week of birth, and the maternity leave start date) unless its not reasonable practicable (e.g. the birth is premature). They have the option of returning to work prior to the expiry of their 26 weeks maternity leave so long as they give their employer 8 weeks notice.

    

3. Right to return to work post maternity absence
   The employee has a statutory right to return to the same job they had prior to their maternity leave on the same terms and conditions as before, unless they have taken further consecutive statutory leave such as AML. After AML, the employee is entitled to return to the same job unless it is not reasonably practicable for them to do so, in which case they must be provided with appropriate alternative employment on terms not less favourable than before. The only other circumstances in which an employee could not return to the same job following OML is in a redundancy situation in which it was not reasonably practicable for them to do so. In these circumstances, the employer must offer any appropriate alternative employment available on terms not less favourable than before. Accordingly, an employee returning from maternity leave has superior rights in redundancy situations to those who have not been on maternity leave. Finally, under section 47 of the Employment Act 2002, employees returning from maternity leave who had 26 weeks continuous service can make a request for flexible working which the employer is under an obligation to consider seriously.

    

4. Right to maternity pay
   Employees must have 26 weeks continuous service up to and including at least one day during the 15th week prior to the anticipated week of the birth and average earnings of at least £95 per week to qualify for statutory maternity pay (SMP). Those who qualify are entitled to receive it for 39 weeks at a rate of 90% of their gross weekly pay per week (which takes into account any pay rises during the OML) subject to a maximum of £123.06 per week after the first 6 weeks. Where the employee earns less than £95 per week on average, but was employed for 26 of the 66 previous weeks earning at least £30 per week, then they are entitled to maternity allowance for 39 weeks of the smaller of £123.06 or 90 per cent of their average gross weekly earnings per week.

    

5. Right to alternative work during maternity suspension
   Where there are risks to pregnant employees which cannot be avoided and there is no appropriate alternative work available for them, then those employees must be suspended on full pay. Nevertheless, should the employee have unreasonably refused appropriate alternative work, then they lose their pay entitlement. Where appropriate alternative employment is available but not offered, the employee can bring a tribunal complaint.

    

6. Time-off for ante-natal care
   Employers are under a legal obligation to allow pregnant employees time off for ante-natal care.

Paternity Leave
Fathers (or those married to or the partner (including same sex partner) of the mother) are entitled to paid paternity leave should they have responsibility for the child’s upbringing so long as they have 26 weeks continuous service by the week preceding the anticipated week of the birth (they retain the right even if the baby dies or is stillborn after 24 weeks of pregnancy). The right is to 1 week or 2 consecutive weeks leave (not 2 separate weeks or individual days) and it must be taken within 56 days of the birth or anticipated week of birth should the baby have been born prematurely. During or prior to the 15th week prior to the anticipated week of birth, the employee must give the employer 28 days notice in writing of the start date (the written notice should include: the fact of the pregnancy, the anticipated week of birth, and the paternity leave start date) unless its not reasonable practicable (e.g. the birth is premature) and the employee is entitled to return to the same job on the same terms as before. Nevertheless, should the employee have taken further consecutive statutory leave such as parental leave, should it not be reasonably practicable for them to return to the same job, then the employer must provide them with appropriate alternative employment on terms not less favourable than before. With respect to paternity pay, should their average gross weekly earnings have been £95 or more, then they are entitled to statutory paternity pay of the smaller of £123.06 per week or 90 per cent of their average weekly earnings per week. Paternity leave is also entitled to be taken by an employee where they are married to or the partner of the adopter of the child.

Parental Leave
Employees who have 1 year's continuous service are entitled to take parental leave to look after their child or make suitable arrangements for their care in the following circumstances:-

• Named on birth certificate re a child aged under 5 born post 15 December 1999, or

   

• Adopted child under 18 post 15 December 1999 and is less than 5 years since date of adoption, or

   

• Parental responsibility for a child aged under 5 born post 15 December 1999.

The employee is entitled to a maximum of 13 weeks unpaid leave for each ‘qualifying’ child (4 weeks maximum in any one year. Nevertheless, should the parent be in receipt of disability living allowance re the child, the restriction limiting the right to children under 5 is increased to 18 and the limitation to 13 weeks leave is increased to 18 weeks, with each period of leave limited to less than 1 week). Parental leave counts towards continuous service and the employee is entitled to return to their old job on the same terms as before.

Adoption Leave
Employees who have 26 weeks continuous service at the point at which they are notified that they are able to adopt a particular child are entitled to take adoption leave. One but not both parents can take it, although the other may be entitled to paternity leave. The employee must notify the employer of the date they wish to take the adoption leave within 7 days of the date they are notified that they are able to adopt the child, although they can later give notice to vary date. The employee is entitled to 26 weeks ‘ordinary adoption leave’ (OAL) which either starts on the date of the adoption or up to 2 weeks prior to that date. They are also entitled to an additional 26 weeks ‘additional adoption leave’ (AAL). The employee is entitled to 8 weeks leave should the adoption process be halted (e.g. by death of the child) from date it is halted (shorter if takes the period of leave beyond the AAL period). An employee’s rights during OAL and AAL and their subsequent return to work are identical to those for ordinary and additional maternity leave as outlined above. Employees whose gross average weekly earnings are £95 or more are entitled to statutory adoption pay for 39 weeks at a rate of the smaller of £123.06 per week or 90 per cent of their average weekly earnings per week.

 

The Employment Law Solicitors, the brand, is part of Antrobus Solicitors, a firm regulated by the Solicitors Regulation Authority. Details of the professional rules which regulate solicitors can be found at the following website address: http://www.rules.sra.org.uk