Parental Leave
Parental Leave
Employees with more than one year’s service are entitled to up to 18 weeks unpaid parental leave for each child. This can be added to normal maternity, paternity or adoption leave. It must be taken in blocks or multiples of one week. It can be taken any time before the child’s 18th birthday. 21 days notice is required. The employer may not refuse to permit the employee to take time off. In certain circumstances may postpone leave.
There is a fall back scheme for parental leave, if alternative formal agreements with employees cannot be reached. Under the Scheme employees can take a maximum of 4 weeks leave in each year in respect of any individual child; parents must give 21 day’s notice and employers can postpone the leave for up to 6 months for business reasons.
Employees taking parental leave have the right to return to the same job. If this is not possible, a job on similar or better terms may be offered. Employees must not be dismissed while taking parental leave.
Employees qualify if all of these apply:
- employed for more than a year
- named on the child’s birth or adoption certificate or they have or expect to have parental responsibility
- not self-employed or a ‘worker’, eg an agency worker or contractor
- not a foster parent (unless they’ve secured parental responsibility through the courts)
- the child is under 18
Employers can ask for proof (like a birth certificate) as long as it’s reasonable to do so, eg they can’t ask for proof each time an employee requests leave.
The period of parental leave is 13 weeks for each child up to the fifth birthday or five years after placement for adoption. It is 18 weeks for each disabled child up to the child’s eighteenth birthday. The regulation governing this is the Maternity and Parental Leave Regulations (NI) 1999. A disabled child is one for whom disability living allowance has been granted. These rights apply to both full and part-time employees, provided they meet the qualifying conditions, and they must be employees.
Parental leave may be taken by either parent and may also be taken by adopting parents.
To qualify for parental leave, the parent must be named on the child’s birth certificate or must have, or expect to have, parental responsibility under the law for the child. The parent does not have to be living with the child to qualify.
If another individual has acquired parental responsibility, that person may be entitled to parental leave, subject to meeting the qualifying conditions. Generally, a year of continuous employment is required to qualify for parental leave.
Parental leave must be taken to look after a child or make arrangements for childcare. This does not necessarily require being with the child all the time. Leave may facilitate the parent in spending more time with younger children. Each parent can take up to 13 weeks of parental leave for every child. This applies to twins as well.
A week of parental leave is equivalent to the normal working week. If a parent works three days a week, they are entitled to three days of leave when calculating their entitlement. Parental leave is not transferable between parents.
The terms and conditions of employment continue to apply during parental leave. Ongoing obligations on both sides continue, including obligations of good faith, protection against unfair dismissal, redundancy rights, and the benefits of disciplinary and grievance procedures.
There is no right to receive pay during parental leave. The employer may make payments under the terms of a particular contract of employment.
If bonuses or annual-type payments arise, then the employee should be paid to the extent that it relates to sums already earned.
Absence during parental leave does not affect the calculation of holiday entitlement.
A parent is entitled to return to the same job they had before taking parental leave, except in the case of leave shorter than four weeks or isolated periods of leave or the last two or more consecutive periods of leave that don’t include any period of additional maternity leave or additional adoptive leave.
Where the period of leave is longer than four weeks or parental leave is preceded or followed by consecutive periods of leave, which include additional maternity leave or additional adoption leave, the employee is entitled to return to their original job unless that is not reasonably practicable. In such cases, the employee is entitled to return to a similar job with the same or better pay and terms and conditions as the previous job.
The employee is entitled to general increases in pay for their grade that arise during their absence on parental leave.
The employee retains the same rights in respect of redundancy. An employer must not select an employee for redundancy solely or mainly because they are taking or propose to take parental leave.
The legislation encourages employers and employees to make their own arrangements regarding parental leave in the workplace. This may be done through individual agreements or collective agreements and can be formally incorporated into an employment contract.
There may be a workplace agreement if there is no collective agreement dealing with the matter. If there is a collective agreement, then the matter must be dealt with in the collective agreement rather than in a workforce agreement.
Employers must decide with whom they wish to enter into the agreement, which may be with a group within the workforce or with all employees. Representatives should be elected to negotiate these agreements.
The number of representatives is determined by the employees, and a vote on the representatives must be conducted in a secret and fair manner.
The workforce agreement must be in writing, shown to all employees to whom it will apply, together with an explanatory guide, and signed by all representatives or by most of the workforce if there are 20 or fewer employees. It must not last more than five years.
The agreement must, at a minimum, reflect the statutory rights.
Agreements may cover other matters such as how notice is given for parental leave and arrangements for postponement.
When there is no agreement in the workplace, the fallback scheme applies.
Under the fallback scheme, the employee can take leave in blocks of one week or more up to a maximum of four weeks in a year for each child. In the case of children entitled to disability living allowance, they may take leave in periods shorter than a week.
The employee must give 21 days’ notice to the employer as to when the leave is to start and finish. This notice need not be in writing.
Where the employee wishes to take parental leave after a child’s birth, 21 days’ notice must be given before the expected week of childbirth. If it is required after placement, the same 21 days’ notice must be given within 21 days of the expected date of placement.
Provided the above notice is given, leave commences on the date the child is born or the date of adoption, regardless of the actual date.
If an employer is of the opinion that the employee’s absence will be unduly disruptive, the employer may postpone the leave for not more than six months after the original requested period. The employer must discuss the postponement, give notice in writing not less than seven days after the employee’s notice, state the reason for postponement, and set out the new date, which must be the same length as the original request.
Leave may only be postponed where business operations would be unduly disrupted by the leave at the requested time.
But postponement of parental leave may not be made where the employee applies to take it immediately after the birth or adoption of a child. Women who apply for parental leave are subject to the same general arrangements for postponement.
An employee may not be dismissed or subjected to detriment by reason of requesting or taking parental leave. He or she may not be subject to detriment or dismissal because they have not signed a workforce agreement or have performed or proposed to perform any functions as a representative in connection with such an agreement.
It is automatically unfair dismissal if an employee is dismissed for any of the above reasons.
Force Majeure Leave I
Employees may take reasonable time off work to deal with unexpected or sudden emergencies and to make longer-term arrangements. These rights are available irrespective of a qualifying period.
There are various circumstances in which the right may apply, such as when a dependent has been injured or assaulted, when a dependent is having a baby, when dealing with arrangements arising from the death of a dependent, or in cases of unexpected disruption or breakdown of care arrangements for a dependent. A dependent includes a husband, wife, child, or parent, and also persons living in the same household.
The employee is not entitled to take a protracted time off, such as for looking after a sick child. The purpose is to deal with immediate issues. However, if an agreement cannot be reached, the Industrial Tribunal will resolve the matter in the event of a dispute.
The employer must be informed as soon as practicable of the reason for the absence and how long it is expected to last. In exceptional circumstances, this may not be possible, but the employer should be advised as soon as possible. The notice need not be given in writing.
An employee is protected from dismissal and detriment arising from exercising or proposing to exercise these rights.
A right may be asserted by making a complaint to the Industrial Tribunal if the matter cannot be otherwise resolved. The Industrial Tribunal may make a declaration as to the position and order the payment of compensation.
Force Majeure Leave II
Employees have a right to reasonable unpaid time off to deal with an emergency involving a dependent. A dependent may be a spouse, partner, child or parent who lives with the employee. Leave can be taken when a dependent falls ill, is injured or assaulted, suffers from mental illness or injury or goes into labour. It can be taken taken to make arrangements for care for a dependent who is ill. It can be taken in consequence of a death.
It may also be taken when they need to:-
- make longer term care arrangements for a dependent;
- arrange to attend a dependent’s funeral;
- deal with unexpected problem in care arrangement;
- deal with an incident involving a child during school hours.
The employee must tell his employer of the reason for his absence as soon as practicable. Unless it cannot be confirmed until he returns to work, he must tell his employer for how long he expects to be absent.
The right to reasonable time off; the length of time is not fixed.There is no minimum qualification period.
Employees who think they have been unreasonably refused time off or have suffered for taking time off may claim to an Employment Tribunal. The claim must be taken within three months.
The right is separate to equality rights and the right to request flexible working arrangements.
Disputes
Disputes regarding parental leave may generally be resolved within the organization. They may be referred to the external appeals procedure or may be assisted by the Labor Relations Agency. If they cannot be resolved amicably, the matter may be referred to an Industrial Tribunal.
The Tribunal may make an order for compensation if it finds the complaint is well-founded. It may make declarations to remedy detriment. It will find a dismissal on these grounds unfair.
Workforce agreements are enforceable contractually. Refer to a separate chapter for information on the enforcement of contracts through civil courts or through county court.
A person taking parental leave may be entitled to income support in respect of unpaid leave.
Flexible Employment Request
An employee may request changes in working patterns if he qualifies as follows
- employed with at 26 weeks’ service
- child under 16
- employee expected have responsibility for the child’s upbringing
- request as to enable the employee to care for the child
- the employee is the father mother guardian, carer foster parent or married to or the partner of such a person
- no previous application made with the preceding 12 months
The application must be made in writing. The employer must give serious consideration to it. It may be refused on the basis of cost, detrimental consequences on other staff, or structural changes.
An employee who is unreasonably refused may apply to the employment tribunal. The employment tribunal may order the employer to reconsider the request. They grant compensation eight weeks pay up to the statutory maximum per week (revised each February).