Parental Rights

Employer

Parental Leave

Parents are entitled to time off for dependants and the right to apply for flexible working, if they have worked for you for at least 1 continuous year. They will be entitled to 13 weeks in total unpaid parental leave for each child born or adopted.

The leave can be taken at any time up to the child's 5th birthday. If the child has disabilities, 18 weeks' leave can be taken up to the child's 18th birthday.

Maternity Leave and Pay

If you have a pregnant employee she will have the right to have both of 26 weeks ordinary maternity leave and 26 weeks additional maternity leave. Your employee must tell you by the end of the 15th week before the expected week the baby is due:

  • She is pregnant;
  • The expected week of childbirth;
  • The date she intends to start maternity leave.

You must then write to her within 28 days, setting out the date of her return.

All pregnant women are entitled to take time off, with pay, to attend antenatal care made on the advice of a medical practitioner and can include such things as relaxation classes and parent-craft classes. You can request to see an appointment card.

Statutory maternity pay must be paid if your employee has been with you continuously for at least 26 weeks ending with the 15th week before the expected week of childbirth and has an average weekly wage at least equal to the lower earnings limit for National Insurance contributions. It is payable for 39 weeks. The standard rate of pay is reviewed annually in April.

You can agree to have "keep in touch" days which can be used for training, team events or for any form of work.

Paternity Leave and Pay

A father to be or one who shares responsibility for the bringing up of a child may have the right to Statutory Paternity Leave and Pay ‐ this includes those adopting a child.

This is available to employees who:

  • Are the biological father or the mother's husband or partner (including same sex relationships) and
  • Who have worked continuously for you for 26 weeks ending with the 15th week before the baby is due or the end of the week in which the child's adopter is notified of being matched with the child.

The father can take either 1 week or 2 consecutive weeks' paid paternity leave ‐ they cannot take odd days.

The father will need to take paternity leave within 56 days of the actual birth of the child or if the child is born early, within the period from the actual date of birth up to 56 days after the first day of the week in which the birth was expected.

Additional paternity pay and leave are available enabling an eligible father to take up to 26 weeks' leave to care for the new baby and can be taken any time from 20 weeks after the child is born, but it must have been taken before the child's first birthday.

The father must write to you at least 8 weeks before the start of the leave with certain information.

In this situation the mother must have returned to work and any relevant maternity pay must have stopped.

It is possible to agree to pay higher rates of maternity and paternity pay with employees which can be included in their Contracts of Employment.

This is a brief overview of the situation. If you require any advice with regard to parental rights and pay, either call or email us.


Employee

As an employee who is about to become a parent, you should be aware of your rights.

Pregnant Women and New Mothers

For example, if you are pregnant, you are entitled to a period of 52 weeks' maternity leave, regardless of your length of service with your employer. You are normally free to start your maternity leave at any time from the eleventh week before your expected due date up to the actual birth, although you are entitled to work up to the week in which the baby is due. If you are absent with a pregnancy related illness at any time from four weeks before the expected birth date, then this is the event that triggers the compulsory maternity leave.

During the whole of the maternity leave period, you will be entitled to benefit from all of your normal terms and conditions of employment (except for the payment of your salary). You will be entitled to return to your original job or a job that is a suitable alternative. If a redundancy situation has arisen during your maternity leave, you will be entitled to be offered a suitable alternative vacancy (if one is available). Your employer is permitted to determine what a suitable alternative job (though legally your employer must take into account all of your circumstances). If your employer cannot offer you suitable alternative work, you may be entitled to redundancy pay (but you cannot unreasonably refuse a suitable offer).

You are entitled to Statutory Maternity Pay (SMP) if you have worked for your employer for a continuous period of at least 26 weeks, ending with the 15th week before the expected week of your delivery and you have average weekly earnings at least equal to the lower earnings limit for National Insurance contributions.

In order to qualify for SMP, you need to tell your employer at no later than 11 weeks before the expected week of childbirth that you are pregnant (and at least 28 days before you want to start your leave). You must also inform your employer of the expected week your baby is due and the date you intend to commence your maternity leave.

SMP can be paid for up to 39 weeks. It is payable by your employer (but the Government will reimburse part of this payment to your employer). For the first six weeks you will be paid 90% of your average weekly wage and for the remainder of your leave you will be paid at the current weekly statutory rate (£135.45 as of 1st April 2012).

If you do not qualify for SMP, you may be entitled to Maternity Allowance, which is paid by the Department of Social Security. There are strict rules regarding eligibility.

During your maternity leave, your employer should make reasonable contact with you. The nature of the contact will depend on a number of factors, such as the nature of your work. Your employer should keep you informed of promotion opportunities and other information relating to your job that you would normally be aware of if you were working.

Paternal Rights

As the husband or partner of a woman who is about to give birth, you may also enjoy some time off work. There are, however, qualifications: (i) you must have or expect to have responsibility for the child's upbringing; (ii) you must be either the biological father of the child or the mother's husband or partner; and, (iii) you must have worked continuously for your employer for 26 weeks leading into the 15th week before the baby is due.

Leave can start on any day of the week following the child's birth but must be completed within 56 days of the actual date of birth of the child.

You employer must pay Statutory Paternity Pay (SPP) for either one or two consecutive weeks (as chosen by you). The rate of SPP will be at the current statutory maternity rate per week or 90% of average weekly earnings if this is less.

Parents of Adopted Children

In addition, parents of newly adopted children have rights to time off and pay. This allows one member of an adoptive couple to take paid time off work when their new child moves in with them. The other person in the couple may take paternity leave and paternity pay.

To qualify for adoption leave, you must be newly matched with a child for adoption and have worked continuously for your employer for 26 weeks, ending with the week in which you are notified of being matched with a child for adoption.

As you can see, maternity, paternity, and adoption rights are a complex area of law; please contact Fosters prior to taking your leave to ensure that you understand your rights and obligations.

The above is for general information only and should not be construed as formal legal advice.

Contacting Us

Fosters Solicitors team of Business & Commercial lawyers have a wealth of experience and knowledge to assist you in relation to any legal query or matter you may have. Call us on 01603 620508 or complete our and a member of the department will be in touch very soon.