Family Friendly Rights

The purpose of this advice page is to give an overview of some of the rights that are available to you, however this is no substitute for specific advice which you can obtain from your GMB Trade Union Representative.

If you are treated unfairly as a result of using the rights on this page you should seek advice without delay.

Important time limits apply to Employment Tribunal claims, you normally have just three months less one day in order to bring a claim in the Employment Tribunal so you should always seek advice in good time.keywords: pa

An employee who is expecting a child has the right to take maternity leave, providing that certain notice requirements are satisfied. Maternity leave consists of compulsory, ordinary and additional maternity leave.

All employees are entitled to both ordinary and additional maternity leave, totalling 52 weeks, providing they satisfy certain notice requirements. An employer is also entitled to ask for proof that the employee is pregnant. Usually, this would be provided to the employer by way of a MATB1 form.

• Compulsory - A woman who gives birth must take compulsory maternity leave which consists of 2 weeks leave (or 4 weeks in the case of factory workers) and commences on the day on which the child is born.
• Ordinary - Ordinary maternity leave consists of 26 weeks (including the 2 weeks compulsory leave) and can commence anytime from 11 weeks before the week the baby is due.
• Additional - A further 26 weeks leave can be taken immediately after ordinary maternity leave ends (starts the day after the last day of ordinary maternity leave).

Notice

An employee has to provide notice to the employer at least 15 weeks before the week the baby is due to be born. The notice must state the following:

• That the employee is pregnant.
• The week the baby is due to be born.
• The week she plans to start ordinary maternity leave.

Within 28 days of receiving the notice, the employer must write back, informing the employee of her expected date of return from additional maternity leave.

If the employee changes her mind regarding the date she wants her leave to start, she must provide at least 28 days’ notice. If it is not reasonably practicable to provide the required 28 days’ notice, then the employee should give notice when it is reasonably practicable to do so.

Statutory maternity leave can be brought to an end early either by:

• Giving 8 weeks’ notice of the intention to return early or;
• Giving 8 weeks’ notice to the employer that the leave is to end on a specified future date

Illness during Pregnancy

If the pregnant employee is absent from work in the last 4 weeks before the baby is due to be born, for a reason related to pregnancy or childbirth, then she has to inform her employer that the absence is pregnancy related. If the employee goes off sick in this period, her maternity leave will start automatically start from the day after the first day of absence.

Statutory Maternity Pay- Eligibility

Shared Parental Leave (SPL) allows for the mother and a second person (father/married to/civil partner or the ‘partner’ of the mother) to share up to 50 of the 52 week leave to which the mother is entitled as maternity leave.

You can also share up to 37 weeks of pay between you and your partner. The right to take shared parental leave is only triggered once the mother gives notice to cut short their maternity leave.

If both parties are to take up SPL, both partners must fulfil the relevant qualification criteria set out in the regulations. The criteria for the mother are:

• Must be an employee.
• Must be entitled to statutory maternity leave and have provided notice to end statutory maternity leave.
• The mother has main responsibility for the care of the child (along with her partner).

A mother may share her leave with the child’s father, her spouse, civil partner or her “partner” which is defined as someone of either sex who lives with the mother and child “in an enduring family relationship” but is not the mother’s child, parent, grandchild, grandparent, sibling, aunt, uncle, niece or nephew.

To be eligible the partner must:

• Have been an employed earner or self-employed earner for at least 26 weeks of the last 66 weeks before expected week of birth.
• To have average earnings of not less than £30 in the best 13 earing weeks of the 66 weeks.
• Share parental responsibility with the mother.
• Have properly notified their employer of their entitlement and have provided the necessary declarations and evidence.

For guidance on the notice provisions and templates that you can use please refer to the following website: www.acas.org.uk/spl

Shared Parental Leave Pay is paid at the rate of £145.18 a week or 90% of your average weekly earnings, whichever is lower. This is the same as Statutory Maternity Pay (SMP) except that during the first 6 weeks SMP is paid at 90% of whatever you earn (with no maximum).

Statutory Adoption Leave is 52 weeks. It’s made up of the following:

• 26 weeks of Ordinary Adoption Leave
• 26 weeks of Additional Adoption Leave

In order to be entitled to adoption leave and pay you must have a child matched and placed for adoption through an adoption agency. When you and your partner (including same sex partners and civil partners) adopt a child you can decide which one will take adoption leave and which one will take paternity leave (subject to meeting the relevant qualifying requirements).

Only one person in a couple can take adoption leave. The other partner could get paternity leave instead. If you get adoption leave, you can also get paid time off work to attend 5 adoption appointments after you’ve been matched with a child. Your partner can also get unpaid time off to attend up to two appointments.

Am I entitled to adoption leave?

To qualify for adoption leave, you must:

• be an employee,
• be matched with a child for adoption by an approved adoption agency, or be one of a couple who have been jointly matched with a child for adoption, and
• have notified the agency that you agree that the child should be placed with you and the date of placement.

You must give the correct notice to take adoption leave, see below.

If you are not an employee you will not be entitled to adoption leave but you may still be entitled to Statutory Adoption Pay (SAP). For example, freelancers, agency workers, zero hours contracts and casual workers may still qualify for SAP.

Start date for adoption leave

Adoption leave can start:

• up to 14 days before the date the child starts living with you (UK adoptions)
• when the child arrives in the UK or within 28 days of this date (overseas adoptions)
• the day the child’s born or the day after (if you’ve used a surrogate to have a child)

You must tell your employer within 28 days if the date of placement (or UK arrival date for overseas adoptions) changes. You must give your employer at least 8 weeks’ notice if you want to change your return to work date.

Statutory adoption leave can be brought to an end early either by:

• Giving 8 weeks’ notice of the intention to return early or;
• Giving 8 weeks’ notice to the employer that the leave is to end on a specified future date

Statutory Adoption Pay is paid for up to 39 weeks. The weekly amount is

• 90% of your average weekly earnings for the first 6 weeks
• £145.18 or 90% of your average weekly earnings (whichever is lower) for the next 33 weeks

It’s paid in the same way as your wages (for example monthly or weekly). Tax and National Insurance will be deducted.

For further guidance on this topic please refer to www.acas.org.uk/adoption

Parental Leave is time off that employees who are parents can take to spend time with their child up until the child’s 18th birthday. It is usually unpaid. This is a separate right from Shared Parental Leave and should not be confused with it.

Parental leave can be taken to look after their child’s welfare such as spending more time with their child, looking at new schools, spending more time with family, such as visiting grandparents and the employee’s terms and conditions of employment will remain the same during this leave.

Employees are entitled to 18 weeks’ leave for each child and adopted child, up to their 18th birthday. This is limited to 4 weeks per year for each child. The leave must be taken in whole weeks unless agreed otherwise or if the child is disabled.

To be eligible employees must:

• have been in continuous employment for more than a year
• named on the child’s birth or adoption certificate or they have or expect to have parental responsibility
• not be self-employed or a ‘worker’, e.g. an agency worker or contractor
• the child is under 18

Employers can ask for proof (like a birth certificate) as long as it’s reasonable to do so. It would arguably not be reasonable to do this every time (an employer should keep a record). For further guidance please see: www.acas.org.uk/parentalleave

Employees have a right to take time off work for dependants, however there is no statutory right to be paid during such time off. The legislation is specific and provides that an employee is entitled to take reasonable time off where it is necessary in the following circumstances:

• to provide assistance if a dependant falls ill, gives birth, is injured or assaulted;
• to make care arrangements for the provision of care for a dependant who is ill or injured;
• in consequence of the death of a dependant;
• to deal with unexpected disruptions, termination or breakdown in arrangements for the care of a dependant; and
• to deal with an unexpected incident which involves the employee's child during school hours

Only in the situations listed above does an employee have the statutory right to reasonable time off. For a definition of a ‘dependent’ for these purposes see below.

You should tell your employer as soon as you need to leave to attend an emergency of this kind. Where an employer has unreasonably refused to permit an employee to take time off as required by the right, you have the right to bring a claim in the Employment Tribunal.

Claims must be brought within three months beginning with the date when the refusal occurred. The time off must be reasonable, however the statutory provisions provide no indication of how much time off is reasonable.

Your employer may pay you for time off to look after dependants but they don’t have to. Check your contract, staff handbook or intranet site to see if there are rules about this.

The definition of a dependant

A dependant is defined as a:

• spouse (or civil partner),
• child,
• parent (but not grandparent) of the employee, or
• a person who lives in the same household of the employee (otherwise than as a lodger or tenant).

In addition, those that reasonably rely on the employee to provide assistance if they fall ill or to arrange for the provision of care, for example, an elderly neighbour, may also be a dependant for the purposes of the legislation.

If you are unsure about any aspect of employment law then you can refer to our other UnionLine employement rights pages - in particular the one on the issue of Limitation in Employment cases. You may also want to seek specific advice from your GMB Region in the first instance.

The purpose of this advice page is to give an overview of some of the rights that are available to you, however this is no substitute for specific advice which you can obtain from your GMB Trade Union Representative.