Parental leave

Parental leave is one of the basic family friendly rights that often arises in the workplace and that employers need to understand.

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What are the basics of parental leave?

Parental leave is the right for employees with 12 months’ service to take up to 18 weeks of unpaid leave to care for a child before the child’s 18th birthday. This is the minimum right permitted by law but can be enhanced.

By default, leave must be taken in complete weeks and up to four weeks a year may be taken; advance notice of 21 days must be given. If the child is entitled to disability living allowance then the leave doesn't need to be taken in complete weeks.

During parental leave the employment contract continues except for pay and benefits. Employees must not be dismissed or subjected to detriment for taking or requesting parental leave or this can lead to discrimination claims. Employers may choose to enhance parental leave rights or can make certain changes to the default statutory scheme through workplace or collective agreements (eg by paying during leave or extending the right to employees with less than 12 months’ service).

A parental leave policy which explains the process within your company can help ensure obligations are met and rights are upheld. 

What relationship must the employee have with the child?

Only employees with parental responsibility can take parental leave. This means they must be the child’s biological parent (whether or not living with the child), be the child’s adoptive parent, or otherwise have legal parental responsibility for the child including under a surrogacy arrangement (eg be the legal guardian). Strictly speaking, a child’s stepparent is not entitled to parental leave for the child unless they have formally acquired parental responsibility (eg adopted the child). The employer can ask for reasonable evidence of parental responsibility.

Tricky parental leave issues

If the parental leave would unduly disrupt business operations, the employer can postpone the requested leave for up to six months unless it is being taken immediately on birth or adoption or to delay the leave would mean the child is no longer under the age of 18. However, to do this, they must act quickly to consult the employee and notify them of the postponement (including the new leave dates) within seven days of their request. If the postponement is 'unreasonable', the employee can bring a tribunal claim. In assessing this, the tribunal will balance the impact of allowing the leave on the employer against the effect of the refusal on the employee.

Other tricky issues can arise, especially where parental leave is extended or combined with other leave rights, including holiday entitlement. Rights under final salary pension arrangements continue to accrue while parental leave is taken. Care must be taken to adjust performance and bonus targets so employees aren’t unfairly penalised for taking leave, although pro-rating is normally acceptable; bonuses that do not depend on work performed (eg loyalty bonuses and some Christmas bonuses) should not be reduced.

It may not be practicable to have the employee return to the same job. In this case, they must be offered suitable, alternative employment.

If in doubt Ask a lawyer about these tricky areas.

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