Key points
  • The written statement of employment particulars issued to an employee, when he (or she) first starts work with an employer, must include particulars of any terms and conditions relating to pensions and pensions schemes, and must include a note stating whether a contracting-out certificate under the Pension Schemes Act 1993 is in force for the employment in respect of which the statement is given (sections 1(4)(d)(iii) and 1(5), Employment Rights Act 1996).
Information about pensions and pensions schemes
  • If the employer has no occupational pension scheme, the written statement must say as much. If the employer does operate such a scheme, the statement must (a) mention its existence, and (b) indicate whether the employee is eligible to contribute to it, and on what terms. However, the statement need not go into any great detail, so long as it directs the employee to some other document (such as a pensions handbook) which explains what the employer's scheme is about and gives the employee sufficient information so as to enable him (or her) to decide for himself whether or not to join the scheme or take out a pension plan of his own. The employee must either have reasonable opportunities of reading that document in the course of his employment or be afforded reasonable access to it in some other way (ibid. section 2(2)).
    Note 
    On 28 September 1994, the European Court of Justice ruled that part-time employees should have the same access to occupational pension schemes as their full-time colleagues. To do otherwise, said the Court, is to discriminate against part-timers, the vast majority of whom (in the UK) are women.
Contracting-out certificate
  • A contracting-out certificate will be issued in respect of an occupational pension scheme if the Occupational Pensions Board (OPB) is satisfied that the scheme will provide its members with pension benefits on retirement at least equivalent to the additional pension otherwise available to employees under the State Earnings Related Pension Scheme (SERPS). Furthermore, the employer's scheme must provide a guaranteed minimum pension for widows equal to at least half the additional pension under SERPS, the remaining half being paid by the state. Members of an occupational scheme must also be assured of a preserved pension after two years' pensionable service at least equivalent to the amount which would otherwise have been available to them had they contributed to the state scheme. The decision whether or not to contract-out of SERPS is one for the employer to make. But, before setting up his own pension scheme, he must first consult with his employees and with representatives of any independent trade union recognised by him and with the trustees and managers of the scheme. The rules for contracting-out are quite complicated, and it is not proposed to deal with them here.
Recent developments
  • Until recently, employees have had one of two choices. They could either contribute to SERPS or contribute to their employer's occupational pension scheme (either voluntarily or in compliance with a term to that effect in their contracts of employment). With the coming into force of the Social Security Act 1989, employees now have the right to opt out of SERPS and to contribute to a (portable) pension plan of their own choosing. Furthermore, they can leave their employer's pension scheme (regardless of any contrary term in their contracts or in the scheme itself) after only two years' pensionable service (instead of five years, as was previously the case).
Member-nominated trustees
  • Section 16 of the Pensions Act 1995 requires the appointment of member-nominated trustees (pension scheme trustees) to represent the interests of their fellow-employees in the administration of the scheme and the funds invested in the scheme for a period of between three and six years. Unless the scheme comprises less than 100 members, there must be at least two member-nominated trustees comprising at least one-third of the total number of trustees. 
The equal treatment rule
  • Under the Pensions Act 1995, occupational pension schemes which do not contain an equal treatment rule will be treated as including such a rule. An equal treatment rule is a rule which relates to the terms on which (a) persons become members of the scheme, and (b) members of the scheme are treated. In short, if a woman is employed on like work, or work rated as equivalent, or work of equal value, to that of a man in the same employment, any term in an occupational scheme which is (or becomes) less favourable to the woman than it is to the man, shall be treated as so modified as not to be less favourable (ibid. section 62). There are exceptions to the equal treatment rule, which will be familiar to the managers and trustees of occupational pension schemes and are beyond the scope of this handbook.
Disabled persons
  • Section 17 of the Disability Discrimination Act 1995 cautions that every occupational pension scheme will be taken to include a non-discrimination rule relating to the terms on which persons become members of the scheme and on which members of the scheme are treated. The rule will also be taken to impose a duty on the trustees or managers of the scheme to refrain from any act or omission which, if done by an employer in his dealings with his employers, would amount to unlawful discrimination under that Act.
Further information
  • As mentioned earlier, the rules about the establishment and management of occupational pension schemes (and the rights of employees in relation to such schemes) are somewhat complicated. However, the DSS has produced two useful books on the subject, which are available on request from most DSS offices. They are titled, respectively, New Pension Choices: Information for Employers and New Pensions Choices: Information for Employees (ref NP 41). With the coming into force of the Pensions Act 1995, these are likely to have been updated.


Key points
  • With the coming into force on 8 December 2002 of the Paternity & Adoption Leave Regulations 2002, the biological father (or the responsible parent) of a child born on or after 6 April 2003 (or expected to be born on or after that date) has the qualified right to take one or two consecutive weeks' paternity leave (either, but not both) within 56 days of the child's date of birth. That same right extends to one or other of the parents of a child notified of having been matched with them for adoption (or placed with them for adoption) on or after that same date. A parent who qualifies for paternity leave (birth or adoption) may also be entitled to statutory paternity pay (SSP) during his or her absence from work.

  • To be eligible for paternity leave, an employee must:
    1. have been continuously employed by his employer for a period of not less than 26 weeks by the beginning of the 14th week before the expected week of the child's birth (or would have been continuously employed for that prescribed minimum 26-week period, but for the fact that the child was either born before the beginning of that 14th week or was stillborn after 24 weeks of pregnancy or has died); or
    2. in the case of an adopted child, have been continuously employed by his or her employer for 26 or more weeks by the end of the week in which the child was placed with him or her and/or his or her wife or partner for adoption;
    3. have or expect to have responsibility for the child's upbringing; and
    4. be the child's biological father; or the mother's husband or partner; or, in the case of an adopted child, the adopter's spouse or partner.

  • Employees claiming paternity leave must, if asked to do so by their employers, provide a form of self-certificate as evidence that they meet the eligibility conditions listed above. To that end, employers may either design their own self-certificates or use either of the Inland Revenue's model forms of self-certificate (Form SC3 [birth] or Form SC4 [adoption] available on request from Employer's Orderline on 08457 646 646.

  • It is as well to point out that when a child is placed with an individual or with a couple for adoption, only one of them (male or female) is entitled to take up to 52 weeks' adoption leave. It is up to the couple in question to decide which of them is to take adoption leave. The other partner will then have the right (if eligible) to take one week or two consecutive weeks' paternity leave.
Timing of paternity leave
  • An employee who qualifies for paternity leave must take his or her full entitlement to either one or two consecutive weeks' leave:
    1. within 56 days of the child's date of birth or, if the child was born prematurely, within the period from the actual date of birth up to 56 days after the mother's expected week of childbirth (EWC); or
    2. in the case of an adopted child, within 56 days of the date on which the child was placed with him or her and/or his or her partner for adoption (whether that date occurs sooner or later than expected).
    It should be noted that paternity leave can start on any day of the week beginning with the date on which the child is born or placed with the adopter for adoption or from the first day of the expected week of the child's birth, or from a chosen number of days or weeks after the date of the child's birth or adoption (whether this is earlier or later than expected) so long as the selected start date ensures that the full period of leave is completed within the prescribed 56-day period. Only one period of paternity leave is available, regardless of the number of children born or placed with an individual or couple for adoption.
Notification procedure
  • To exercise their right to paternity leave, eligible employees must inform their employers of their intentions either by the end of the 15th week before the mother's expected week of childbirth (EWC) or, in the case of an adoptive parent or a couple who are adopting, within seven days of the adopter or adopters being notified by an approved adoption agency that he, she or they have been matched with a child. At the same time, an employee must:
    1. specify the mother 's EWC or the date on which the child is expected to be placed for adoption;
    2. whether he (or she) wishes to take one or two weeks' paternity leave; and
    3. when he (or she) wants that period of leave to start.
    Employees who have correctly notified their employers of the date on which they intend to start their paternity leave may change their minds about that start date so long as they inform their employers of that change of mind at least 28 days before the revised start date (or as soon as is reasonably practicable, if circumstances dictate that they are not in a position to give 28 days' advance notice).
Statutory paternity pay
  • To qualify for statutory paternity pay (SPP) during the paternity leave period, an eligible employee must have average weekly earnings equal to or greater than the current lower earnings limit for National Insurance purposes. For 2003/04, that lower earnings limit is £77 per week. SPP is payable at the same standard rate as statutory maternity pay (SMP), ie, £100 a week or 90% of the employee's average weekly earnings at the time, whichever is the lower of those amounts. Employers who have lawfully paid SPP to an employee will (as is the case with payments of SMP) be able to recover an amount equal to 92 per cent of the amount paid by deducting it from PAYE tax and NI contributions routinely remitted to the Inland Revenue at the end of each income tax month. Small employers (the total of whose NI contributions did not exceed £40,000 during the preceding tax year) will, on the other hand, be able to recover 100 per cent of the amount of SPP paid, plus a further 4.5 per cent to recoup the additional NI contributions paid on such payments. These figures are reviewed every year.
Return to work after paternity leave
  • Employees returning to work after a period of paternity leave have the legal right to do so in the jobs they held immediately before that period of leave began, without any loss of seniority or pension rights, or any other terms and conditions that would have prevailed but for their absences from work.
Claims and remedies
  • Eligible employees who are denied their entitlement to paternity leave (paid or otherwise), or who are dismissed, selected for redundancy, victimised, or subjected to any other detriment for asserting their rights under the Paternity & Adoption Leave Regulations 2002, may complain to an employment tribunal and will be awarded appropriate compensation if their complaints are upheld.


Key points
  • With the coming into force on 1 July 2000 of the Part-Time Workers (Prevention of Less Favourable Treatment) Regulations 2000, any part- time worker who is treated less favourably (or believes that he (or she) has been treated less favourably) than a comparable full-time worker employed in the same establishment is entitled to demand and receive from his employer a written statement explaining the reasons for such treatment. If dissatisfied with his employer's explanations, the part- time worker may seek redress from an employment tribunal. Any part- timer who is dismissed, selected for redundancy or subjected to any other detriment for exercising or asserting his statutory rights under the 2000 Regulations, or for bringing proceedings before an employment tribunal, may complain (yet again) to an employment tribunal and will be awarded appropriate compensation.

  • The 2000 Regulations (as amended by the Part-time Workers (Prevention of Less Favourable Treatment) Regulations 2000 (Amendment) Regulations 2002) implement EC Directive 97/81/EC of 15 December 1997 'concerning the framework agreement on part-time work'.
Rights extended to all workers
  • Under the Employment Protection (Part-Time Employees) Regulations 1995 – not to be confused with the Part-time Workers (Prevention of Less Favourable Treatment Regulations 2000 under discussion – part- time employees (as distinct from workers who are not 'employees' in the strict legal sense of the word) have long since enjoyed the same statutory rights as their full-time contemporaries (regardless of the number of hours they work, or are contracted to work, each week). However, the 2000 Regulations add a new dimension to that earlier legislation, by giving all part-time workers (whether 'employees' or otherwise) the right to be treated no less favourably than comparable full-time workers.
Meaning of comparable full-time worker
  • For these purposes, a full-time worker is a 'comparable full-time worker ' in relation to a part-time worker if, at the time when the allegedly less favourable treatment occurred, both workers are:
    1. employed by the same employer under the same type of contract (see below);
    2. are engaged in the same or broadly similar work, having regard, where relevant, to whether they have a similar level of qualifications, skills and experience; and
    3. work at the same establishment (or, where there is no full-time worker working or based at the same establishment as the parttime worker, work at or are based at a different establishment within the employer's organisation).
Same type of contract?
  • Regulation 2(3) of the 2000 Regulations (as amended) states that the following are not to be regarded as being employed under the same types of contract:
    1. employees employed under a contract of employment, that is not a contract of apprenticeship;
    2. employees employed under a contract of apprenticeship;
    3. workers who are not employees;
    4. any other description of workers that it is reasonable for the employer to treat differently from other workers on the gound that workers of that description have a different type of contract.
    For example, (a) is not the same type of contract as (b), (c) not the same type of contract as (a); and so on. In short, part-time workers who are not 'employees' do not have the right under the 2002 Regulations to compare their terms and conditions of employment with those of their full-time colleagues who are employees.
Less favourable treatment of part-time employees
  • Part-time workers must not be treated less favourably than comparable full-time workers solely because they work part-time, unless different treatment is justified on objective grounds. For instance, a part-time employee should be paid the same basic rate of pay as a comparable full-time employee, and a part-time worker who is not an employee, the same as a comparable full-time worker engaged in the same or similar work. But a different hourly rate of pay may be justifiable on grounds of performance, so long as levels of performance are measured by a fair and consistently applied performance appraisal scheme.

  • It is not uncommon for occupational sick pay schemes to provide more generous benefits to full-time workers (eg, full salary or wages for a period of up to three months in every 12-month period). By the same token, it is not unusual for part-time workers to receive no more than their entitlement to statutory sick pay (SSP) when incapacitated for work on health grounds. Such a sweeping differential is no longer acceptable, or justifiable. Indeed, it could give rise to allegations of unlawful sex discrimination, let alone a complaint to an employment tribunal under the 2000 Regulations. That same general prohibition applies to differential treatment in relation to occupational maternity and parental leave schemes, annual holiday entitlements, unpaid career breaks, access to occupational pension schemes, access to opportunities for training and promotion, redundancy selection criteria, etc (ibid. regulation 3).

  • To avoid infringing the rights of part-time workers in their employ, employers will need to scrutinise the relative terms and conditions of their full-time and part-time workers and eliminate any discrepancies or anomalies that cannot be justified on objective grounds. In determining whether a part-time worker has been treated less favourably than a comparable full-time worker, the principle of pro rata temporis must be applied – unless it is inappropriate. It would be inappropriate, for example, to apply that principle to basic rates of pay (see above), access to pension schemes, opportunities for training, transfer or promotion, career break schemes, contractual maternity or parental leave, or redundancy selection criteria.
    Note 
    The principle of pro rata temporis means that where a comparable full-time worker receives (or is entitled to receive) pay or any other benefit, a part-time worker is to receive (or be entitled to receive) not less than the proportion of that pay or other benefit that the number of his (or her) weekly hours bears to the number of weekly hours of the comparable full-time worker (ibid. regulation l(l)).
Exception in relation to overtime payments
  • The 2000 Regulations acknowledge that part-time workers have no right to premium payments in respect of overtime work until such time as their working hours (including overtime hours) during a particular pay reference period exceed the number of hours ordinarily worked by comparable full-time workers in that same period. But, once that point is reached, premium payments, for hours worked in excess of those full-time hours, must be the same as those paid to full-time workers (ibid. regulation 3(4)).
Written statement of reasons for less favourable treatment
  • Any part-time worker, who considers that he (or she) is being treated less favourably than a comparable full-time worker, may ask his employer for a written statement explaining the reasons for that treatment. The employer must provide that statement within 21 days. The written statement is admissible in evidence before an employment tribunal (ibid. regulation 4).
  • If an employer deliberately, and without reasonable excuse, fails to provide that written statement, an employment tribunal may draw any inference from that failure that it considers just and equitable (including an inference that the employer has infringed the part-time worker's statutory rights). It may also do so if the written statement is evasive or equivocal (ibid.).
    Note 
    There is no need for a separate written statement if a part-time worker (qua employee) who has been dismissed has already requested and received a written statement of reasons for dismissal under section 91 of the Employment Rights Act 1996 
Unfair dismissal and detrimental treatment
  • A part-time employee (who is not a worker) and is dismissed or selected for redundancy will be treated in law as having been unfairly dismissed if the reason (or, if more than one, the principal reason) for his (or her) dismissal or selection was that he:
    1. had complained to an employment tribunal about an alleged infringement of his rights under the 2000 Regulations;
    2. had asked his employer for a written statement of the reasons for his less favourable treatment;
    3. had given evidence or information in proceedings before an employment tribunal brought by another worker;
    4. had alleged (in good faith) that his employer had infringed the 2000 Regulations;
    5. had refused (or proposed to refuse) to forego a right conferred on him by the 2000 Regulations; or
    6. that his employer believed or suspected that the employee had done (or intended to do) any of the things mentioned in (a) to (e) above
    (ibid. regulation 5(1), (3) and (4)).
    A part-time worker who has been victimised, disciplined or subjected to any other detriment (including dismissal in the case of a worker who is not an employee), on any of the grounds (a) to (f) specified above, has the right to refer the matter to an employment tribunal without having to resign in order to do so (ibid. regulation 5(2), (3) and (4)).
Complaints to employment tribunals, etc
  • A part-time employee (regardless of his or her age or length of service at the material time) may complain to an employment tribunal that his employer has infringed his statutory rights under the 2000 Regulations – either by subjecting him to a detriment or some other punishment, or by dismissing him or selecting him for redundancy. Such a complaint must be presented within three months of the alleged detrimental treatment or, if the employee has been dismissed, within three months of the effective date of termination of the employee's contract of employment. A tribunal may consider a complaint which is out of time if, in all the circumstances of the case, it considers that it is just and equitable to do so.

  • If a complaint of unlawful detrimental treatment is upheld, the tribunal will make a declaration to that effect and may order the employer to pay compensation to the worker and/or recommend that the employer take appropriate corrective action (within a specified period) to obviate or reduce the adverse effect on the worker of any matter to which the worker's complaint relates. A failure to take such corrective action will prompt the tribunal either to increase the amount of compensation already awarded to the worker or (if no compensation had previously been awarded) order the employer to pay compensation to the employee. The amount of compensation awarded in such circumstances will be such amount as the tribunal considers just and equitable, and will include compensation for the loss of any benefit which the worker might reasonably be expected to have had but for his employer's infringement of his rights under the 2000 Regulations (or the employer's failure to take the recommended corrective action) (ibid. regulation 6).

  • A worker (qua employee) who has been dismissed (or selected for redundancy), in contravention of the 2000 Regulations, will be treated as having been unfairly dismissed (regardless of his or her age or length of service at the material time) and will be awarded compensation comprising a basic and compensatory award (maximum £7,800 and £53,500, respectively) and, where appropriate, an additional award of compensation of between 26 and 52 weeks' pay.

Parental Leave

Key points
  • Legislation giving employees (in their capacities as parents or adoptive parents) to be granted up to 13 weeks' unpaid parental leave (18 weeks, in the case of a child awarded a disability living allowance) is to be found in Part III of the Maternity & Parental Leave etc Regulations 1999, as amended by the Maternity & Parental Leave (Amendment) Regulations 2001, implementing Council Directive 96/34/EC of 3 June 1996 'on the framework agreement on parental leave'. Before the 1999 Regulations were amended, the right to take a period of unpaid parental leave was restricted to the parents of children born to (or placed with them for adoption) on or after 15 December 1999. Following a challenge mounted by the TUC, and the likelihood of proceedings before the European Court of Justice (ECJ), the UK Government conceded that the right to parental leave should have been made available to all employed parents with children under the age of five on 15 December 1999 as well as to adoptive parents of children under the age of 18, who were placed with them for adoption before that date.
  • The right to parental leave is available only to those employees who have been continuously employed with their respective employers for a period of one year or more and who are either the parents of a child under the age of five (or under the age of 18, if the child has been awarded a 'disability living allowance') or who adopted a child on or after that date.
Nature of the right
  • The natural or biological parents of a child born under the age of five may (as employees) each take up to 13 weeks' unpaid leave during the first five years of the child's life (that is to say, up to and including the child's fifth birthday). If the mother gives birth to twins, the entitlement applies to each of those children.
  • The parents of a child placed with them for adoption may likewise (as employees) each take up to 13 weeks' unpaid parental leave during the first five years following the adoption or until the child turns 18, whichever occurs sooner.
  • The parents of a disabled child (that is to say, a child who has been awarded a disability living allowance) may each take up to 18 weeks' unpaid parental leave until the child's 18th birthday.
  • A week's leave, for these purposes, is a period of absence from work which is equal in duration to the period for which an employee is normally required to work in any week. For an employee whose working hours (under his or her contract) vary from week to week, a week's parental leave is a period of absence from work which is equal in duration to the total of the employee's contractual working hours in any one year divided by 52. An employee who takes parental leave for a day or two at a time, will have taken a full week's parental leave when the aggregate of those days equates to the number (or average number) of days in a week in which he or she is normally required to work. Overtime hours should not be included in calculations unless an employee is required under his or her contract to work a specified number of overtime hours each week.
  • When dealing with a first request for parental leave, an employer has the right to ask for documentary evidence of parental responsibilities in the form of a birth certificate or adoption papers, or (in the case of a disabled child) evidence that a child has been awarded a disability living allowance. An employer may decline a request for parental leave until such time as that evidence is produced for his inspection.
How much leave can be taken at a time?
  • The amount of parental leave that can be taken at any one time is a matter for negotiation and agreement between employees and their employers. If there is nothing in an employee's contract of employment (eg, in the written statement of employment particulars, a staff or works handbook, or in a company policy document) concerning an employee's right to parental leave – including the amount of parental leave that may be taken at any one time – the default (or fallback) provisions outlined in Schedule 2 to the 1999 Regulations will apply
  • Collective and workforce agreements can also be used to determine procedures for dealing with requests for parental leave, the amount of leave that may be taken at any one time; and so on. If an employee's terms and conditions of employment are determined by a collective agreement between the employer and a recognised independent trade union (and those terms are imported into each employee's contract of employment), that same forum may be used to give practical effect to an employee's statutory right to parental leave. A workforce agreement may be used for parental leave purposes if the terms and conditions of employees (or certain identifiable groups of employees) are not otherwise determined by agreement with a recognised independent trade union.
  • An employer wishing to conclude a workforce agreement on parental leave must oversee the conduct of a secret ballot for the election of an appropriate number of employee representatives to negotiate the agreement with him. The number of representatives to be elected is a matter for the employer, depending on the size of the workforce or of the group of employees to be covered by the agreement. The employer must ensure that every employee is afforded an opportunity to vote in the ballot and to put his or her name forward as a candidate for election as an employee representative. The employer must provide the necessary facilities and must ensure that votes are counted fairly and accurately.
  • To be valid, the resultant workforce agreement must be in writing; must be signed by the negotiating parties; must be shown to all affected employees (together with a guide explaining what the agreement means); and must last for no longer than five years. The agreement should (advisedly) lay down procedures for applying for parental leave, indicate how much leave may be taken at any one time; and, where appropriate, explain the circumstances in which the employer may postpone a request for parental leave (including the employee's right to take that postponed leave at a later date). If negotiations fail to produce a workforce agreement, the fallback parental leave scheme explained below automatically applies.
  • Any term in a contract of employment (or in a collective or workforce agreement) that purports to override or undermine an employee's statutory right to parental leave is null and void. However, there is nothing to prevent an employer providing more generous parental leave provisions, including a period of paid parental leave.
Contractual and statutory rights during parental leave
  • Although the continuity of a period of employment is not broken by periods of unpaid parental leave, the only contractual rights that prevail during such absences are those relating to notice periods, severance payments (that is to say, payments in excess of statutory redundancy pay), and access to the employer's disciplinary or grievance procedures. Both parties to the employment contract are bound by their mutual and implied contractual duty of trust and confidence. From the employee's standpoint, this means that, during any period of parental leave, the employee must not work for any other employer and must not disclose to any unauthorised person confidential information relating to his (or her) employer's trade secrets, business activities, etc.
  • Apart from the express and implied contractual rights referred to in the previous paragraph, all other terms and conditions of employment (eg, the right to be paid, accrual of occupational sickness benefits, holidays in excess of the statutory minimum, occupational pension rights, etc) are held in suspense when an employee is absent from work on parental leave. An employer may, of course, choose to override these statutory limitations and may, for example, continue to allow an employee the use of a company car or mobile phone during his or her absence on parental leave.
  • An employee's statutory rights remain undisturbed during parental leave, including the right not to be unfairly or unlawfully dismissed, the right to be paid a statutory minimum redundancy payment if dismissed for redundancy, and the entitlement to accrue paid annual leave under the provisions of the Working Time Regulations 1998.
Returning to work after parental leave
  • An employee who takes parental leave for a period of four weeks or less (other than immediately after taking additional maternity leave) is entitled to return from leave to exactly the same job that he (or she) held before that period of leave began. That same rule applies if (having completed a minimum of one year's service) a woman takes parental leave for a period of four weeks or less immediately after the end of her ordinary maternity leave period.
  • An employee who takes parental leave for a period of more than four weeks is likewise entitled to return from leave to the job in which he (or she) was employed before that period of absence began – unless it was not reasonably practicable for his employer to permit him to return to that job; in which case, the employee has the right to return to another job which is both suitable for him and appropriate for him to do in the circumstances. That same rule applies if (having completed one year's service with her employer), a woman takes more than four weeks' parental leave immediately after her ordinary maternity leave period.
  • A woman who takes parental leave for a period of four weeks or less immediately after her additional maternity leave period is entitled to return from leave to the job in which she was employed before her maternity absence began – unless it would not have been reasonably practicable for her to return to that job if she had returned at the end of her additional maternity leave period, and it is still not reasonably practicable to permit her to do so at the end of that period of parental leave.
    Note 
    As is demonstrated elsewhere in this handbook, an employee who is made redundant during her ordinary or additional maternity leave periods has the right to be offered suitable alternative employment under a contract that takes effect on the day following the day on which her original contract came to an end. Should she accept such an offer, her right to return to work after her ordinary or additional maternity leave is a right to return to work in that alternative job (not the job she held before her absence began). If the same employee takes parental leave immediately after either of her ordinary or additional maternity leave periods, it is the alternative job (not her original job) to which she has the qualified right to return.
The fallback scheme
  • In the absence of any alternative arrangements (negotiated individually or under the terms of a collective or workforce agreement), the fall- back scheme outlined in Schedule 2 to the 1999 Regulations comes into play. There is anecdotal evidence that most small- to medium-sized firms have adopted the fallback scheme.
  • Under the fallback scheme, an employee may take parental leave in blocks (or tranches) of one week or more, unless the child in question is entitled to a disability living allowance, in which case the leave may be taken in single days or periods of less than one week. No more than four weeks' parental leave may be taken in any one year. For these purposes, a year is the period of 12 months which begins on the date on which the employee first became entitled to take parental leave in respect of the child in question (that is to say, either the day following the date on which the employee completed 12 months' continuous service with his (or her) employer, or the date on which the child was born or placed for adoption, whichever occurs later).
  • Employees seeking parental leave under the fallback scheme must (if asked to do so) provide their employer with evidence of parental responsibility (in the form of a birth certificate, adoption papers or evidence that a child has been awarded a social security disability living allowance). Such evidence need only be produced on the first occasion that a parent submits a request for parental leave in respect of a child born or placed for adoption on or after 15 December 1999 (although, strictly speaking, an employer has the right to demand such evidence each time the same employee seeks further tranches of parental leave). The procedure may, of course, be repeated in the case of a second or subsequent child.
  • As a rule, a request for parental leave must specify the dates on which the period of leave is to begin and end, and must be submitted to the employer at least 21 days before the date on which the requested period of leave is to begin. If the applicant is a father-to-be, the request for leave must be made at least 21 days before the beginning of the expected week of childbirth (EWC), and must specify that EWC and the duration of the intended period of leave. If a period of parental leave is to begin on the date on which a child is to be placed for adoption with an employee, the request for leave must be submitted at least 21 days before the beginning of the week in which the placement is to occur, and must specify the week in question and the duration of the intended period of leave. An employer's unreasonable refusal to agree to a request for parental leave will very likely be scrutinised by an employment tribunal, the more so if an employee's child was born prematurely or the intended adoption date was unexpectedly brought forward.
  • The fallback scheme allows that an employer may postpone the intended start date of a requested period of parental leave for a period of up to six months. This is permissible if the employee's absence from work during that period is likely to cause undue harm to the employer's business. Such a situation might arise if a key worker has asked for parental leave at a very busy time of the year or if a number of employees have asked for overlapping periods of parental leave, leaving the employer seriously understaffed. However, postponement is not permissible if the requested period of parental leave is intended to begin on the day of a child's birth or on the day on which a child is to be placed with an employee for adoption.
  • Within seven days of receiving a request for a period of parental leave, an employer intent on postpoing that period of leave must write to the employee explaining his reasons for the postponement and setting out alternative dates for the beginning and end of that leave. Before doing so, the employer must discuss the postponement with the employee and agree alternative start and finishing dates. A postponed period of parental leave must be of the same duration as the period of leave originally requested. An employee may take the postponed period of leave, even if the revised start date occurs after the child's fifth birthday (or after the fifth anniversary of the date on which the child was placed with the employee for adoption; or, in the case of a child entitled to a disability living allowance, after the child's 18th birthday).
Unfair dismissal
  • An employee will be treated in law as having been unfairly dismissed if the reason (or principal reason) for the dismissal or selection for redundancy was that the employee had taken (or sought to take) parental leave. The same rule applies if the employee was dismissed or selected for redundancy for refusing to sign a workforce agreement or (as appropriate) for performing or proposing to perform or carry out his (or her) legitimate functions or activities as a workforce representative or as a candidate for election as such a representative. 
Detrimental treatment
  • An employee has the right also not to be punished, victimised or subjected to any other detriment (demotion, transfer, loss of promotion prospects, forfeiture of opportunities for training, etc) for exercising or proposing to exercise his (or her) statutory right to parental leave, or for refusing to sign a workforce agreement, or (where appropriate) for performing or proposing to perform his functions or activities as a workforce representative or as a candidate for election as such a representative.
Rights of disenfranchised parents
  • As indicated in the preamble to this section, the rights of parents effectively disenfranchised by the 1999 Regulations, as originally enacted (including those who have since changed jobs and are now working for different employers), were reinstated on 10 January 2002 by the Maternity & Parental Leave (Amendment) Regulations 2001. What this means is that the parents of a child born or placed with them for adoption before 15 December 1999, and who have (or had) been continuously employed by their present (or a previous) employer for one year or more during the period from 15 December 1998 to 9 January 2002, inclusive, may take the parental leave previously denied to them (so long as they do so by 31 March 2005) – even if (in the case of employees who have since changed employers) they have yet to complete one year's continuous service with their new employers.
  • Disenfranchised parents 'deemed' (in the circumstances described) to have worked for their present employers for the minimum qualifying period of one year, will forfeit their restored entitlement to parental leave until and unless they produce the child or children's birth certificates (or adoption papers) and, in the case of a disabled child, confirmation that the child has been awarded a disability living allowance. Disenfranchised parents who resigned or were dismissed from their previous jobs on or after 15 December 1999 must also produce evidence supporting their assertion that they had worked for a previous employer for one year or more during the period from 15 December 1998 to January 9, 2002, inclusive.
Further Information
  • The Department of Trade & Industry has published a booklet titled Parental Leave: A Guide for Employers and Employees (Ref URN 99/1193) copies of which may be obtained (free of charge) from:
    DTI Publications Orderline
    ADMAIL 528
    London
    SW1W 8YT
    Telephone: 0870 1502 500
    Fax: 0870 1502 333
    email: publications@dti.gsi.gov.uk

Overtime Employment

(Statutory restrictions)

Key points
  • Until the coming into force, on 1 October 1998, of the Working Time Regulations 1998, there were few legal restrictions in the UK on the number of hours which an employee could be required to work. The 1998 Regulations, which extend to Great Britain only (there are cognate provisions in Northern Ireland legislation) implement Council Directive 93/104/EC of 23 November 1998 'concerning certain aspects of the organ- isation of working time'. They also incorporate Council Directive 94/33/EC of 22 June 1994 'on the protection of young people at work'.
  • The reader will note that the protection afforded by the 1998 Regulations extends to all workers, and not just to those who are employees in the strict legal sense of the word. In short they apply to any person (casual, seasonal, freelance, trainee on work experience, agency 'temp', and so on) who undertakes to do or perform personally any work or service for an employer – whether for a day or two here an there, for a couple of weeks, or whatever. However, they do not apply to persons who are genuinely self-employed. An employer should not accept at face value any statement by a worker that he (or she) is self-employed. There must be documentary evidence to support such a claim (eg, business accounts, letterhead, pre-printed invoices, VAT registration, etc). In doubtful cases, an employer should always seek the advice of the Inland Revenue.
The 48-hour week
  • Under the 1998 Regulations (as amended by the Working Time Regulations 1999 and the Working Time (Amendment) Regulations 2002) adult workers (ie, workers aged 18 and over) cannot be required to work more than an average 48 hours a week (including overtime hours), calculated over a rolling or fixed reference period of 17 weeks. That reference period may be extended in prescribed circumstances to 26 or 52 weeks. However, there is no provision for averaging in the case of young workers under the age of 18, who have legally left school. A worker under the age of 18 cannot lawfully work, or be required to work for more than 8 hours a day or for more than 40 hours a week. 
  • However, there is an opt-out facility that enables an adult worker to agree to work more than that average 48 hours, so long as he (or she) does so individually, voluntarily and in writingThat option is not, repeat, is not, available to workers under the age of 18. A purported general opt-out for the adult workers at large or for a particular group of workers, under the terms of a workforce or collective agreement, is void and unenforceable. The same applies to any term in a contract of employment that presumes to override a worker's rights under the 1998 Regulations. Furthermore, the opt-out agreement signed personally by an adult worker must remind that worker of his (or her) right to cancel the agreement on giving a specified period of notice (not exceeding three months). If the opt-out agreement makes no mention of the worker's right to change his mind, it may be cancelled by the worker giving his employer seven days' advance written notice of that decision (ibid. regulations 4 and 5).
  • Any attempt on the part of an employer to pressurise a worker into opting out of the 48-hour week will not only invalidate the agreement but could also lead to criminal prosecution and a fine of up to £5,000, or more if a conviction is obtained on indictment. 
Exceptions to the 48-hour rule
  • The upper limit on working hours does not apply to managing executives and other persons with autonomous decision-making powers; nor does it apply to people whose working time is not measured or predetermined by their employers or who determine their own patterns of work (ibid. regulation 20(1)).
  • The exception also applies to workers (such as travelling salesmen, repairmen, etc) whose working time is partly measured, predetermined or determined by the worker, and partly not. In such cases, the provisions in the 1998 Regulations which relate to weekly working time and night work apply only in relation to that part of the worker's work which is measured, predetermined or cannot be determined by the worker himself (or herself) (ibid. regulation 20(2), as inserted (with effect from 17 December 1999) by regulation 4 of the Working Time Regulations 1999).
Extending the reference period
  • The standard reference period of 17 weeks, over which an adult worker's average weekly hours (including overtime hours) are calculated, may be extended (in special cases) to up to 26 weeks by an employer, or up to 52 weeks under the terms of a collective or work- force agreement – so long as the extension is for objective or technical reasons or reasons concerning the organisation of work. However, no collective or workforce agreement can override an adult worker 's statutory right not to work more than an average 48-hour week. As was explained earlier, that is entirely a matter for the individual. The optout option is not available to workers under the age of 18, however willing a 16 or 17-year-old may be to work more than 48 hours in any week.
Work at night
  • An adult worker (aged 18 and over) whose contract requires him or her to work at night (ie, for seven or more hours, including the period between midnight and 5:00 am) cannot legally be required to work more than an average eight hours in any 24-hour period calculated over a static or rolling reference period of 17 consecutive weeks. That said, employers must nonetheless see to it that adult night workers engaged in work involving special hazards or heavy physical or mental strain do not work at night for more that eight hours in any period of 24 consecutive hours.
  • With the coming into force on 6 April 2003 of the Working Time (Amendment) Regulations 2002, young workers under the age of 18 must not be employed between 10:00 pm and 6:00 am or, where their contracts require them to work after 10:00 pm, between the hours of 11:00 pm and 7:00 am. However, those restrictions do not apply to young workers employed in hospitals or similar establishments or in connection with cultural, artistic, sporting or advertising activities. Young workers employed in agriculture, retail, hotels, bakeries, postal or newspaper deliveries or in catering activities (including bars and restaurants) may be employed up to midnight or after 4:00 am (but not between those hours) so long as they are given an opportunity of a free assessment of their health and capacities before being assigned to such work.
Enforcement
  • Responsibility for enforcing the upper limits on working time (and night work) rests with health and safety inspectors and local authority environmental health officers. The latter have sweeping powers to enter an employer's premises, examine records, and talk to workers. Evidence of non-compliance could lead to prosecution and a heavy fine. A failure to maintain appropriate records or to obstruct an inspector in the exercise of his (or her) functions is also a serious matter which will attract swingeing penalties under the Health & Safety at Work etc Act 1974.
Complaints to an employment tribunal
  • A worker may complain to an employment tribunal that he (or she) has been disciplined, dismissed, selected for redundancy, or subjected to some other detriment (eg, denial of overtime, forfeiture of a promised pay rise, etc) for challenging his employer's failure to comply with his rights under the 1998 Regulations, or for refusing to forego those rights, or for asserting those rights before a tribunal or court. If such a complaint is upheld, the employer will be ordered to pay the employee a substantial (or further substantial) award of compensation (per sections 45A, 48(lZA), 49(5A), 101A, 104(4)(d) and 105(4A), Employment Rights Act 1996).
  • It is as well to point out that a worker (whether employee or otherwise) has no need to resign in order to pursue his (or her) statutory rights before an employment tribunal, so long as the complaint is presented within three months of the employer's refusal or failure to comply. If the worker has resigned or been dismissed, the complaint must be presented within three months of the effective date of termination of his contract of employment or within such further period as the tribunal considers reasonable in the circumstances.
Written statement of employment particulars
  • A worker who is an employee, in the strict legal sense of the word, has the legal right to be issued with a written statement explaining the principal terms and conditions of his (or her) employment. The statement must include information about any terms and conditions relating to hours of work (including any terms and conditions relating to normal working hours, night work and, by definition, time off for meals or rest) (per section 1, Employment Rights Act 1996). Any written statement (often inaccurately referred to as the 'contract of employment') which purports to override or undermine the employee's rights under the Working Time Regulations 1998 is void and unenforceable.
    Note 
    The fact that the right to be issued with a written statement of employment particulars is restricted to workers who are employees (as distinct from workers who are not employees), does not undermine the protection afforded to every worker under the 1998 Regulations.
Overtime premium payments
  • Until the repeal on 30 August 1993 of Part II of the Wages Act 1986, wages councils were the only statutory bodies with the legal authority to require employers to pay premium payments to employees who work more than a specified number of hours a week.
  • Blue collar workers, shop assistants, restaurant and hotel workers, clerical, administrative and secretarial staff, ordinarily expect to be paid at premium rates if they agree to work hours in excess of their normal weekly hours, or if their contracts of employment require them to do so – but they have no statutory right to such payments. Overtime premium payments are less likely to be paid to professional and managerial staff and are almost unheard of in the ranks of senior managers and company directors. Much will depend on what is written into an employee's contract of employment, bearing in mind that the written statement issued under Part I of the Employment Rights Act 1996 (see above) must include particulars of 'any terms and conditions relating to hours of work (including any terms and conditions relating to normal working hours)' (ibid. section 1(4)(c)).
  • Collective agreements drawn up between employers and representative trade unions, and 'imported into' a worker 's contract, usually specify overtime premium payments for all hours worked in excess of the standard working week. Workers in certain industries are traditionally paid double time for overtime hours on Sundays and bank holidays, supplemented in some cases (eg, in the hotel and catering industry) by equivalent paid time off work to be taken at a later date.
    Note 
    The Sunday Trading Act 1994 and the Betting, Gaming & Lotteries Act 1963 (as amended) gave shop workers and betting workers the right to opt-out of Sunday work. But neither of those enactments (the relevant provisions of which are now to be found in the Employment Rights Act 1996) requires employers to pay premium rates for overtime working. 
Compulsory and voluntary overtime
  • Whether or not an employee can be fairly dismissed for refusing to work overtime will depend, in large part, on any related express or implied term in his (or her) contract of employment. If an employee's contract requires him to work a minimum of 10 overtime hours a week, he must work those hours (subject, of course, to any overriding legal restriction on the maximum number of weekly hours (including overtime hours) under the 1998 Regulations, discussed earlier in this section). If, having accepted employment on those terms he then refuses to work any overtime at all, let alone 10 hours a week, he will have repudiated a fundamental term in his contract of employment and can be dismissed with impunity bearing in mind that difficulties of this sort will ordinarily be identified, discussed and resolved long before any such employee qualifies to pursue a complaint of unfair dismissal.
  • If the same employee decides after one or more years' service that he is unhappy about working 10 hours' overtime a week, his dismissal for refusing to comply with the terms of his contract will still be held to have been fair so long as his employer can satisfy an employment tribunal that he had acted reasonably in treating the employee's refusal to work overtime (and his reasons for doing so) as a sufficient reason for dismissing him. 
  • If an employee's contract is silent on the question of overtime, or simply states that overtime hours will be remunerated at such-and- such a rate, his (or her) refusal to work overtime on a single occasion is likely to be less damaging to his prospects of survival than his refusal to work overtime on any occasion. A great deal will depend on the particular circumstances and the employee's general attitude to his work
Complaint to an employment tribunal
  • On the termination of his (or her) employment, a worker (qua employee) can bring a 'breach of contract' claim before an employment tribunal if his employer had denied him his contractual right to work a specified number of overtime hours each week, and/or (provided that he had been continuously employed for one year or more) a complaint of unfair dismissal if dismissed for refusing to work overtime. Unfair dismissal and 'breach of contract' claims must be presented to a tribunal within three months of the effective date of termination of the employee's contract of employment. If such a complaint is upheld, the tribunal will make a declaration to that effect and will order the employer to pay damages or compensation (and/or, in the case of a dismissal) to reinstate or re-engage the employee in his original (or in an equivalent) job