Parental leave is commonly thought of as meaning the same as maternity leave and paternity leave. They are however different. Parental leave is an additional right of both parents which entitles employees to take leave to care for their children. This should also not be confused with ‘Time off to care for dependents’ as this is an additional right. The key difference between time off to care for dependents and parental leave is that the former is meant to be used in situations of emergency and the latter relates to time off which has been planned in advance to care for a child.
There are various conditions affecting parental leave which can make this a tricky area of law for employers.
Employees must have been employed for a minimum of one year to qualify for parental leave. They must be a named parent on either the birth or adoption certificate and must have, or expect to have ‘parental responsibility’ for the child for which the leave is requested. Employers are fully entitled to request proof of parental responsibility such as through a birth certificate or a court order.
There are some jobs which exclude the right to parental leave such as employment in either the Armed or Police Forces. There are also ‘grey areas’ where it is not clear whether a particular relationship will warrant parental leave entitlement. The matter turns on whether or not the employee has ‘parental responsibility’ for the child to which the leave relates. For example, guardians or grand-parents may have parental responsibility and therefore may be entitled to parental leave.
Parental leave is unpaid (unlike statutory maternity leave). Parent employees are entitled to 18 weeks leave per child and this can be taken at any point up until the child’s 5th birthday. In the case of adopted children it can be taken up to the fifth anniversary of placement of the child with the adoptive parents (or until the 18th birthday of that child – whatever comes first). The legally entitled period of unpaid leave is 18 weeks, including for adopted children and disabled children (who qualify for Disability Living Allowance).
Unpaid parental leave is the right of both part-time and full time employees who qualify as having parental responsibility. Thus a ‘week’ relates to the time an employee usually spends at work in any given week. The leave is not connected to the individual employment but applies in relation to each child. Therefore, for example, if an employee has already used 8 weeks of parental leave for one child when in other employment, then they are only entitled to 10 weeks unpaid parental leave within the qualifying period when they are employed by you.
Default Provisions under ‘Schedule 2’
It can be beneficial for employers to negotiate their own parental leave arrangements with employees that work well for their place of work. However in the absence of any arrangements, Schedule 2 of the governing Regulation provides the default position. It provides that employees must take parental leave in multiples of one week. Therefore, parental leave cannot be taken in single or multiple of days. The exception to this is in the case of disabled children (who are entitled to Disability Living Allowance) in which case leave may be taken in periods shorter than one week.
Notice must also be given to the employer of intention to take parental leave at least 21 days before the requested period. The notice must also specify the date on which leave will commence and end. In situations where it is not reasonably practicable for 21 days’ notice to be given then notice must be given as soon as reasonably practicable. For example in circumstances of adoption it may not be possible to give 21 days’ notice but provided notice is given of the expected week of the adoption placement, leave can commence when the child is placed in the care of the adoptive parents. Similarly, where leave is to commence following the birth of a child then notice need only state the expected week of birth of the child. So long as notice is given, the regulations provide that leave will commence on the day the child was born, whether this is earlier or later than the expected week of childbirth given to the employer. Employees are not entitled to take more than 4 weeks of parental leave in any given year unless by agreement with their employer verbally or through their contract of employment.
If an employer decides to provide its own terms of parental leave in the contract of employment these cannot be less favourable than the ones provided for by the Regulation.
Employer’s Right to Postpone Parental Leave
Although parental leave is a legally provided right of employees, employers can postpone parental leave in certain circumstances if they can demonstrate that they have a significant reason to do so. For example, where the employer considers that if the employee took leave at the time requested then ‘the operation of his business would be unduly disrupted’. The employer may postpone taking of the leave for up to six months from the time it was requested by consulting with the employee but no later than this.
Where leave is requested for immediately following the birth of a child (by a father) or immediately following an adopted child being placed (with either parent) then leave cannot be postponed.
Where an employer seeks to postpone parental leave they must give written notice of this to the employee within seven days of the leave being requested. If the employer does not intimate postponement to the employee within that period then the right of the employer to postpone is lost. The notice must state the reason for the postponement and the proposed dates on which the employer agrees that the employee can begin and end their postponed parental leave.
Status of the Employee whilst on Parental Leave
The employment contract between the employer and employee continues whilst the employee is on leave however the main concern for the employer is that all terms relating to remuneration and benefits are suspended during parental leave. It may be impracticable for the employer to suspend benefits like pension contributions or club membership for short periods of parental leave.
The employer is still liable to an employee on parental leave to give notice of termination of employment, for redundancy pay should the employee be made redundant and to follow disciplinary and grievance procedures in relation to that employee. Thus the correlating rights of the employee to claim unfair or wrongful dismissal etc. are still intact.
Return to the same job
The employees’ right to return to the same job depends on the period of parental leave taken. The Regulation provides that only if an employee is returning from four weeks or less parental leave are they entitled to return to the same job, unless this is not reasonably practicable for the employer for them to do so. If this is not reasonably practicable, then the employee can return to a job ‘on terms and conditions not less favourable than those which would have been applied if she had not been absent’ and with all the same status and terms.
If the employee decides not to return to work after parental leave they are still required to give the statutory or contractual notice period – whichever applies – and the same is required on the part of the employer ending the contract of employment as mentioned above. In addition, if a redundancy situation arises and the employee on parental leave is considered for redundancy, then they are entitled to the same rights as though they were not on parental leave and a failure to do so could amount to unfair dismissal. Moreover, selecting an employee for redundancy on the basis that they are on parental leave or have previously taken parental leave (whether with their current or previous employer) would also amount to unfair dismissal.
The purpose of Parental Leave
The regulation is not specific about the purpose of the leave other than that it is to care for their children. If the employer finds an employee is dishonestly taking leave for other reasons then the normal disciplinary procedures would apply.
For bespoke parental leave or employment law advice contact John Carruthers Solicitors & Solicitor Advocates.