Parental Leave—Public Interest Disclosures
Parental Leave
- 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.
- 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.
- 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.
- 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
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