Parents have a myriad of rights to leave to care for their children. It can get very confusing, and won’t get any clearer when the rather complex Shared Parental Leave comes into force. This article sets out the different types of leave, who qualifies and what rights there are to pay during leave.
You can take up to 26 weeks of ordinary maternity leave (OML) and a further 26 weeks additional maternity leave (AML), regardless of how long you have worked for your employer. In order to qualify, you must tell your employer the date when you wish to start your leave before the end of the 15th week before you’re due to give birth. The first 2 weeks after birth are compulsory maternity leave, when you are not permitted to work.
Qualifying employees are entitled to a maximum of 39 weeks statutory maternity pay (SMP). For the first six weeks you are paid at 90% of your salary, the remaining 33 weeks are paid at the lower of either the standard rate of £136.78, or 90% of your average gross weekly earnings. The statutory rate will rise to £138.18 on 6 April 2014. Check your company maternity policy because some employers offer enhanced maternity pay.
Terms and conditions of your employment continue during your maternity leave, except in respect of pay. You should continue to receive your non-cash contractual benefits such as medical insurance or a company car if this is for personal as well as business use. You are also entitled to any pay rises given during your leave, though this will take effect on your return unless within the first 6 weeks when maternity pay is determined by a percentage of your salary.
Holidays accrue during maternity leave and can be taken before or after your leave but not during.
You have the right to return to the same job after OML. After AML, your employer can offer a suitable and appropriate alternative if it is not practical for you to return to the same job.
Dads, or mum’s partner, are entitled to 2 weeks’ Ordinary Paternity Leave (OPL) paid at £136.78, rising to £138.18 on 6 April 2014. Many employers offer this at full pay. Although most men choose to take the leave as the baby is born, it can be taken at any time within 56 days of the birth. To qualify, dad must have had at least 26 weeks’ service 14 weeks before the due date.
If dad qualifies for OPL he is also entitled to APL, if mum goes back to work. APL cannot be taken until baby is 20 weeks old and no later than baby’s first birthday. Dad must be working for the same employer as he was when he took OPL. He is entitled to the unexpired portion of mum’s SMP, paid at the same rate.
All parents are entitled to take up to 18 weeks unpaid parental leave before their child is 5. The leave accrues in respect of each child, so a parent of 3 children could take up to 54
weeks. Leave must be taken in blocks of a week and can be limited to 4 weeks per year. Employers can postpone the leave for up to 6 months where the business would be unduly disrupted.
To take the leave, employees must have been with their employer for at least a year. Leave can move between employers, so for example if you had taken 3 weeks leave and got a new job, you could take up to 15 weeks in that new job once you had been there for a year.
All employees are entitled to a reasonable amount of unpaid leave to deal with dependants who are ill or injured. The leave is also available because of unexpected disruption of childcare or to deal with an incident at school.
Shared Parental Leave
There has been much publicity around Shared Parental Leave, due to apply to parents of children born after April 2015. Parents will be able to share 50 weeks’ leave after the 2 week compulsory maternity leave. They can take leave in consecutive blocks or at the same time. They can even ask their employer for non-continuous leave, though employers will have the right to refuse this. Maternity and Paternity pay will remain at current levels.
To qualify, employees must have 26 weeks’ service 14 weeks before the baby’s due date. Both parents must meet the “economic activity test”, which is to say they must have worked for at least 26 of the 66 weeks before the baby is born, and have earned at least £30 per week for at least 13 of those weeks.
Parents and carers have the right to request flexible working, such as working part time hours, changing the hours they work or working from home. An employer can only refuse a request for a sound business reason. If the employer refuses to consider the request or refuses it based on incorrect facts, the employee can complain to the Employment Tribunal.
Author: Louise Taft (Prolegal). Prolegal provides prestigious expertise without the elevated costs expected in this area. We employ the people, the resources and the technology needed to deliver you the highest quality of service in employment law.