By: Simon B
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Parental and Family Leave
When a female employee has a baby, she is entitled to maternity leave. This is provided that she is an employee and not a worker.
Maternity leave lasts for a maximum of 52 weeks – this is made up of ordinary maternity leave and additional maternity leave, both of which are 26 weeks. Entitlement is the same for all employees, regardless of how much they get paid, how long they have worked at your company or how many hours they work per week.
It is only obligatory for the employee to take two weeks off after their baby is born, however (or four weeks if they work in a factory).
Your employee should inform you of the due date of their baby and when they wish to start maternity leave at least 15 weeks before the baby is due. You must write to the employee within 28 days confirming the start and end dates of their maternity leave.
The start of maternity leave
The earliest an employee can start maternity leave is 11 weeks before the expected birth of the baby. Maternity leave can begin automatically on the day after the birth when the baby is early, or if the employee takes time off work for a pregnancy-related illness in the four weeks before the week in which the baby is due.
Statutory Maternity Pay
Employees are entitled to 39 weeks of Statutory Maternity Pay. For the first three weeks of this, they are entitled to be paid 90% of their average weekly earnings.
For the remainder, they should be paid the lower of £138.18 or their average weekly earnings.
Employees usually receive Statutory Maternity Pay as soon as they begin their maternity leave. This includes the aforementioned case where maternity starts automatically due to a pregnancy-related illness in the four weeks before the baby’s due date.
For an employee to be eligible for Statutory Maternity Pay they must earn at least £111 a week. They must also have given you sufficient notice and proof of their pregnancy.
Proof of pregnancy can be in the form of a doctor’s certificate or a MATB1 form, which are issued by midwives and doctors, usually 20 weeks before the due date. The employee should give this proof to you within 21 days of the start of their Statutory Maternity Pay, although you can agree to wait for longer. If you have not received proof of the due date by 13 weeks after the SMP start date then you can refuse to pay.
Additionally, they must have worked for you continuously for at least 26 weeks by the 15th week before the expected week of the birth.
Employees who go into police custody during their maternity pay period will relinquish their right to Statutory Maternity Pay and will not be able to regain it.
Employees are still entitled to both Statutory Maternity Leave and Statutory Maternity Pay in the following situations:
- the baby is born early
- the baby is stillborn after the start of the employee’s 24th week of pregnancy
- the baby dies after being born
Employees who do not qualify for SMP may be able to claim Maternity Allowance instead.
You must keep certain records pertaining to your employee’s maternity for HM Revenue and Customs.
You must keep:
- proof of pregnancy (doctor’s note or MATB1 certificate)
- the start date of the employee’s Statutory Maternity Pay
- each SMP payment and when they were made
- any SMP that you have reclaimed
- any weeks SMP was not paid and the reasons for this
These records must be kept for three years from the end of the tax year they relate to.
Employees who have a pregnant partner may be entitled to:
- Ordinary Statutory Paternity Leave and Pay
- Additional Paternity Leave and Pay
- time off to attend antenatal appointments
Ordinary Paternity Leave and Pay
Employees are eligible for Ordinary Paternity Leave to look after their child if:
- they have worked for you continuously for at least 26 weeks by the end of the 15th week before the expected week of childbirth
- they are classed as an employee (rather than a worker)
- they are responsible for the child’s upbringing
If an employee is eligible they can take either one week’s or two consecutive weeks’ leave.
Statutory Paternity Leave must begin on or after the birth date, or after the expected week of childbirth. The period of leave must end within 56 days of the birth, or the due date if the baby is early.
During Statutory Paternity Leave, eligible employees are entitled to receive whichever is lower of £138.38 or 90% of their average weekly earnings.
Different rules may apply to certain types of worker. See the government’s site for more information.
If an employee intends to take Ordinary Statutory Paternity Leave they must inform you of the following:
- the due date of the baby
- when they want their leave to start (although they can change this if they give you 28 days’ notice)
- how much leave they want
This does not have to be given in writing unless you specifically request it to be.
Additional Paternity Leave and Pay
Employees can request Statutory Additional Paternity Leave and Pay if their partner returns to work before the end of their maternity leave or pay period.
If an employee is eligible then they are entitled to Additional Paternity Leave of between two and 26 weeks, along with Additional Statutory Paternity Pay at either £138.18 per week or 90% of their average weekly earnings – whichever is lower.
- You can offer more than this if you have your own paternity scheme written into the employee’s contract.
- An employee’s employment rights are protected during Additional Paternity Leave. This includes the right to pay, to holidays, and to return to their job.
- You still have to pay Additional Statutory Paternity Pay even if you stop trading.
Additional Paternity Leave or Pay can only start 20 weeks after the baby’s birth.
Leave will stop on the baby’s first birthday, while pay will stop when the mother’s maternity leave would have ended. These dates can, however, be changed if the employee gives you 6 weeks’ notice.
There are certain situations in which special rules apply. See gov.uk for more details.
Unpaid Additional Paternity Leave
If the time when the mother’s maternity leave would have ended has passed and your employee is no longer eligible for Additional Paternity Pay, they may still take unpaid leave.
Employees are eligible for Statutory Additional Paternity Leave and Pay if:
- they have worked for you continuously for at least 26 weeks by the week in which the baby is due
- they’re employed by you in the week (Sunday-Saturday) before their leave or pay begins
- they are on your payroll and earn at least £111 a week during an eight-week period
To be eligible for Additional Statutory Paternity Pay their partner must have at least two weeks of their maternity pay left.
Employees have to give you at least eight weeks’ notice before their period of Additional Paternity Leave starts. The one case in which this does not apply is if the mother has died.
When giving notice your employee should complete and hand you a form – which form they should use depends on the circumstances. They should use:
- Form SC7 if they are having a baby
- Form SC8 if they are adopting in the UK
- Form SC9 if they are adopting from abroad
- Form SC10 if they are caring for a child whose mother or adopter has died
Within 28 days of receiving your employee’s request, you should confirm in writing how much pay they will get and the start and end dates of their leave.
You do not have to start your employee’s pay or leave if they don’t give you the right amount of notice without good reason.
As proof, you can ask for a birth certificate, or, in the case of adoption, a letter from the adoption agency. An ‘official notification’ can be requested for overseas adoptions. You can also ask for the contact details of your employee’s partner so that you can check when their maternity leave ends. These should be given to you within 28 days.
Refusing Additional Paternity Leave or Pay
If you think that your employee is not eligible to receive Additional Paternity Leave or Pay you should write to them within 28 days, including the ASPP1 form for non-payment of Additional Statutory Paternity Pay.
Parental leave can be taken by employees when they need time off work for reasons relating to their child’s welfare. For example, this time can be used to:
- spend more time with their children
- visit potential new schools
- settle children into new childcare arrangements
- allow children to spend more time with family – e.g. visiting grandparents
Parental leave is unpaid.
Employees must meet certain criteria in order to be eligible for parental leave. They must:
- have been in the company for more than a year
- be named on the child’s birth or adoption certificate
- have or expect to have parental responsibility
- not be self-employed or a ‘worker’ – e.g. an agency worker or contractor
- not be a foster parent (unless they’ve secured parental responsibility through the courts)
If it is reasonable to do so, you as an employer can ask for proof in the form of a birth certificate each time an employee requests parental leave.
Even if your employee doesn’t meet the eligibility criteria, you can still decide to grant them parental leave.
In what circumstances can employees take parental leave
For an employee to qualify for parental leave, their child must, in most cases, be under five years old.
For each child, the employee will be entitled to 18 weeks of parental leave, which can be used up to the child’s fifth birthday.
A week in this context means the number of days the employee works in a normal period of seven days.
There are two cases where parental leave can be taken beyond the child’s fifth birthday. When the child is adopted, it can be taken until the earlier of the child’s 18th birthday and the fifth anniversary of the child’s adoption.
Where a child qualifies for Disability Living Allowance, parental leave can be taken until their 18th birthday.
Note that the 18 weeks of parental leave are tied to each child rather than to the employee’s job, so if, for example, an employee used up 10 weeks of their parental leave in their previous job, you would only have to grant them eight weeks.
How much parental leave are employees entitled to
There is a limit on the number of weeks of parental leave that a single parent can take in a single year of four weeks, although as an employer you are not strictly bound by this.
Employees will have to take parental leave in full week blocks unless you give them permission to do otherwise.
Employees should give you 21 days’ notice of their intention to take parental leave. If they are having a baby or adopting, this should be 21 days before the birth or adoption is expected to happen. In their notice, the employee should confirm the start and end dates of their parental leave period. They do not have to do this is writing unless you specifically request for them to do so.
Time off for dependants
Employees are also entitled to time off work to deal with emergencies relating to dependants – that is, a spouse, partner, child, grandchild, parent or anyone else who depends on them for care.
Things which could count as an emergency for this purpose include:
- illness, injury or assault – even if the situation is not life-threatening or they don’t need full-time care
- having a baby – if the person if dependent on the employee to give them a lift to the hospital, for example
- disruption of care arrangements – if a carer or nursery school is unable to look after the employee’s child, for example
Employers should give their employees an amount of time off which is appropriate given the nature of the emergency.
There is no statutory limit on the amount of time which an employee can take, but you can warn them if you think the amount of holiday they are taking is detrimental to their work.
You may pay your employee for this time off, but there is no obligation to do so.
Expectations on the employer
You may be considered to have acted unfairly if you deny employees reasonable time off to attend to their dependants, or treat an employee less favourably because they have taken time off for dependants, for example by refusing them training or promotion. You should not dismiss an employee or select them for redundancy because they have taken time off for dependants.
If an employee has suffered the bereavement of a dependant and needs time off, this can fall under time off for dependants. If the bereavement is not that of a dependant, then it is down to your discretion as an employer whether or not compassionate leave is granted in these circumstances. This should ideally be set out in your employee’s contract.