Home Advice & informationRights at Work Summary of maternity, paternity and parental rights and remedies

Summary of maternity, paternity and parental rights and remedies

SUMMARY OF MATERNITY, PATERNITY AND PARENTAL RIGHTS

This table sets out the minimum your employer is required to do to comply with the law. Your employer might offer more than this contractually, so please always also check the documents you have been provided by your employer to see what they say about your rights in this area.

The right Main features Who qualifies – Employees / Workers / Agency Workers / Self-employed? Remedy

Time off for antenatal care

 

 

Reasonable paid time off (at normal hourly rate of pay). All pregnant employees, and agency workers who have met certain service requirements.

Claim for compensation. If the employer refused paid time off, compensation amounting to twice the hourly rate for the period when the employee/agency worker would have been entitled to paid time off shall be awarded. If the employer agreed to time off but failed to pay the whole amount to which the employee/agency worker is entitled, the employee/agency worker is entitled to the amount they should have received, plus an amount the tribunal may decide.Likely to constitute both unlawful pregnancy and maternity discrimination (e.g. victimisation, failure/refusal to pay).

Protection from dismissal and detriment (e.g. failure to pay).

Time off to accompany partner to antenatal care

 

 

Employees or agency workers with a ‘qualifying relationship’ with a pregnant woman or her expected child entitled to unpaid time off to attend up to two appointments. All employees and agency workers who have met certain service requirements. Claim for compensation of twice the hourly rate for the number of hours that the employee/agency worker would have been entitled to have been absent, had the time off not been refused.Protection from dismissal and detriment.
Time off to attend adoption appointments

Employees or agency workers adopting a child on their own are entitled to paid time off to attend five appointments.

 

Employees and agency workers who are proposing to adopt. An adoption appointment is an appointment made by an adoption agency relating to a child being placed for adoption or for a fostering for adoption placement. Claim for compensation. If the employer refused paid time off, compensation amounting to twice the hourly rate for the period when the employee/agency worker would have been entitled to paid time off shall be awarded. If the employer agreed to time off but failed to pay, compensation of an amount the tribunal finds due to the employee/agency worker shall be awarded. If the employer unreasonably refused unpaid time off, compensation payable of an amount determined by the tribunal in accordance with a prescribed formula.Protection from dismissal and detriment.
Time off to accompany the co-adopter to attend adoption appointments Employees or agency workers adopting a child with another (joint adopters) may elect for one of them to take paid time off to attend up to five appointments, while the other may take unpaid time off to attend up to two appointments. Employees and agency workers who are proposing to adopt jointly with another person. An adoption appointment is an appointment made by an adoption agency relating to a child being placed for adoption or for a fostering for adoption placement. Claim for compensation. If the employer refused paid time off, compensation amounting to twice the hourly rate for the period when the employee/agency worker would have been entitled to paid time off shall be awarded. If the employer agreed to time off but failed to pay, compensation of an amount the tribunal finds due to the employee/agency worker shall be awarded. If the employer unreasonably refused unpaid time off, compensation payable of an amount determined by the tribunal in accordance with a prescribed formula.Protection from dismissal and detriment.
Health and Safety protection Protection from risks before and after childbirth.   Employers have a duty to carry out a risk assessment of work and the workplace, and make alternative arrangements to address any issues identified. Alternative arrangements could include action to avoid the risks, temporary alteration to working conditions or hours of work and if this is not possible, suitable alternative work.  Where no suitable alternative work is available (or it is reasonably refused by the employee), the employee shall be suspended on full pay, usually on basic pay or average pay over previous 12 weeks. Employees, (once pregnancy has been notified in writing).

If the employer fails to offer to provide alternative work, employee may claim just and equitable compensation for failure to provide suitable alternative work prior to suspension.Claim against the employer for failure to pay while employee is suspended for remuneration to which the employee is entitled.

Failure to undertake a required risk assessment or to act on findings may amount to unlawful pregnancy or maternity discrimination.

Maternity Leave

Employees can qualify for up to 52 weeks maternity leave, made up of 26 weeks Ordinary Maternity Leave and 26 weeks Additional Maternity Leave.For these purposes a woman is entitled to maternity leave if her baby is born live at any time or if  the baby is born after 24 weeks, including still birth.

See separate entries for Compulsory Maternity Leave, Ordinary Maternity Leave (“OML“), Additional Maternity Leave (“AML“), Contractual Rights during OML and AML, the Right to Return to Work after OML and AML and the right to Statutory Maternity Pay.

Compulsory Maternity Leave All employees must take a minimum two weeks’ maternity leave starting with the day on which childbirth occurs. This is extended to four weeks for factory workers. Employees. It is a criminal offence for an employer to allow an employee to work during this period.
Ordinary Maternity Leave (“OML“)

26 weeks leave for any employee who gives birth. OML cannot begin until 11 weeks before the week the baby is due, unless the baby is born before then. The employee must ensure they serve notice on their employer no later than the end of the 15th week before the week the baby is due (or as soon as reasonably practicable).Entitled to the benefit of all terms and conditions of employment during the maternity leave, except those relating to remuneration.

 

Employees. Potential claims for unlawful detriment, breach of contract, automatically unfair dismissal and pregnancy/maternity discrimination.
Additional Maternity Leave (“AML“) Employees who qualify for OML also qualify for AML.   AML lasts for 26 weeks and starts on the day after the end of OML.Entitled to the benefit of all terms and conditions of employment during the maternity leave, except those relating to remuneration. Employees. Potential claims for unlawful detriment, breach of contract, automatically unfair dismissal and pregnancy/maternity discrimination.
Contractual rights during OML All rights set out in the contract continue to accrue, apart from remuneration. Employees on OML. Potential claim of pregnancy and maternity discrimination, automatically unfair dismissal and unlawful detriment.
Contractual rights during AML All rights set out in the contract continue to accrue, apart from remuneration. The law is unclear on pension rights during unpaid maternity leave. Employees on AML. Potential claim of pregnancy and maternity discrimination, automatically unfair dismissal and unlawful detriment.
Return to work after OML Right to return to the same job. Terms of employment must be the same as, or not less favourable than, they would have been had the employee not been absent, unless a redundancy situation has arisen. Employees who have taken 26 weeks’ leave or less (this includes employees who have taken OML and a period of shared parental leave where the total leave is 26 weeks or less) or employees who have taken that amount of leave with up to 4 weeks parental leave on top. Potential claim of pregnancy and maternity discrimination, automatically unfair dismissal and unlawful detriment.
Return to work after AML Right to return to the same job or, if this is not reasonably practicable, to return to another job which is suitable and appropriate. All employees who have taken a period of maternity leave (or maternity leave combined with shared parental leave) which is more than 26 weeks or who have taken a period of more than four weeks’ shared parental leave on top of OML. Potential claim of pregnancy and maternity discrimination, automatically unfair dismissal and unlawful detriment.
Statutory Maternity Pay (“SMP“) A higher rate of 90% of average pay for first 6 weeks, then the prescribed rate (for the tax year 2017/2018, the prescribed rate was a flat rate of £140.98 for 33 weeks (or 90% of average earnings if that is less)). SMP is paid for up to 39 weeks. Employees and other workers who meet the existing conditions for SMP. In certain situations, where an employer does not pay, the employee will have a right to receive her SMP directly from HMRC. Potential claim of pregnancy and maternity discrimination and unlawful detriment.
Contractual Maternity Pay Some employers offer schemes which enhance statutory maternity pay. Check your employer’s policies to see if this is relevant.  It is common for enhanced maternity pay to be conditional on employees returning to work and completing a specified period of service after maternity leave. Potential claim for breach of contract and unlawful deduction of wages.
Maternity Allowance (“MA“)

£140.98 a week for 39 weeks (or 90% of average earnings if that is less), payable by the Jobcentre Plus.MA is paid for up to 39 weeks.

MA is paid every two to four weeks.

Employees, workers and the self-employed who meet the required conditions. Currently, an individual is entitled to MA if they: (i) are not entitled to SMP; (ii) have been engaged in employment or been self-employed for any part of the week in at least 26 of the 66 weeks immediately preceding the expected week of confinement; (iii) have average weekly earnings which are not less than £30; and (iv) have become pregnant and reached, or given birth before reaching, the commencement of the 11th week before the expected week of childbirth.If an employee does not qualify for MA, they may be eligible for employment and support allowance, income support or universal credit. If a claimant is refused MA they have one month to request a reconsideration. This is done by writing to the address on the decision letter. If the reconsideration request is refused claimants can appeal to the Social Security and Child Support Tribunal. The time limit for an appeal is one month after the date of the reconsideration decision notice.
Redundancy during maternity leave Right to be given first refusal of any suitable alternative vacancy, including that with an associated employer. Employees on OML or AML. If breached, the employee will have a claim for automatically unfair dismissal.
Paternity Leave Employees can qualify for either one whole week or two consecutive week’s paternity leave within 56 days of the child’s birth or adoption.See separate entries for Paternity Leave and Contractual Paternity Pay.
Paternity leave (birth/adoption)

New fathers and employees who are the spouse, partner or civil partner of a child’s mother or primary adopter can take up to 2 weeks Paternity Leave with Statutory Paternity Pay (“SPP“) paid at the prescribed rate (for the tax year 2017/2018, the prescribed rate was a flat rate of £140.98 for 33 weeks (or 90% of average earnings if that is less).Leave must be taken in blocks of either one week or two, within 56 days of the child’s birth or placement.

The employee has a right to return to the same job on returning from leave.

Employees who have: (i) 26 weeks service by 15th week before the expected week of childbirth/notification of being matched with a child (in adoption cases); (ii) have/expect to have responsibility for the child’s upbringing; and (iii) are a biological father or partner of the mother or primary adopter.An employee may not take paternity leave if they have already taken any shared parental leave in respect of the same child. Protection from unlawful detriment and unfair dismissal.
Contractual Paternity Pay Some employers offer schemes which enhance paternity pay.   Check your employer’s policies to see if this is relevant. Potential claim for breach of contract and unlawful deduction of wages.
Shared Parental Leave

The Shared Parental Leave regime provides new parents with a flexible way to take leave in the first year after a child is born or placed for adoption.   Leave can be taken simultaneously or in blocks alternating periods of work and leave.Employees can end (or give notice of their intention to end) maternity or adoption leave/pay to allow the child’s other parent/partner to share up to 50 weeks of the leave, pay or allowance (see ‘Statutory shared parental pay’ below) (employees may also end their leave and then restart shared parental leave at a later date).

The two week period of compulsory leave for new mothers cannot be shared, but parents/partners can take a period of shared parental leave or paternity leave to be on simultaneous leave during this period.

Right to return to the same job on returning from leave (or to a similar job if taking more than 26 weeks’ leave).

Right to first refusal of any suitable alternative vacancy in a redundancy situation.

There are various criteria which the mother and partner both need to satisfy. This includes that the employee has 26 weeks service by 15th week before the expected week of childbirth/notification of being matched with a child.The requirements for each employee differs slightly depending on when the shared leave is taken and which parent is proposing to take it. Protection from unlawful detriment and unfair dismissal.
Statutory shared parental  pay An employee is entitled to take the remainder of the 39 weeks SMP, MA or Adoption Pay as statutory shared parental lpay or transfer entitlement to a co-parent/adopter.Statutory shared parental pay is £140.98 (from April 2017) for 39 weeks (or 90% of average earnings if that is less). Broadly, any employee who is eligible for shared parental leave is eligible for statutory shared parental leave pay provided they have normal weekly earnings of at least the lower earnings threshold for national insurance contributions. Anyone who has qualified for SMP, Statutory Adoption Pay or Statutory Paternity Pay will have met this test. In certain situations, where an employer does not pay, the employee will have a right to receive SSPP directly from HMRC.
Contractual Shared Parental Leave Pay Some employers offer schemes which enhance shared parental leave pay (though this is less common than enhanced maternity pay).   Check your employer’s policies to see if this is relevant.  It is common for enhanced shared parental leave pay to be conditional on employees returning to work and completing a specified period of service after shared parental leave. Potential claim for breach of contract and unlawful deduction of wages.
Adoption Leave Employees who have elected to be ‘the adopter’ can qualify for up to 52 weeks’ statutory adoption leave, split into 26 weeks’ ordinary adoption leave and 26 weeks’ additional adoption leave.See separate entries for Statutory Adoption Leave, Adoption Pay and Contractual Adoption Pay.
Statutory Adoption Leave An adoptive parent who is the primary adopter can take up to 52 weeks adoption leave, split into 26 weeks’ ordinary adoption leave and 26 weeks’ additional adoption leave. Statutory adoption pay is provided for up to 39 weeks leave.Adoptive parents can elect who is the primary adopter for the purposes of this leave. The other adopter will be entitled to paternity leave and/or shared parental leave. Employees who are the primary adopter, have notified the adoption agency of their agreement that the child should be placed, and have complied with the notification requirements.

The right to return to the same job (or, if more than 26 weeks’ leave have been taken, to return to a suitable and appropriate alternative job).Protection from unlawful detriment and unfair dismissal.

 

Statutory Adoption Pay £140.98 (from April 2017) for 39 weeks (or 90% of average earnings if that is less). Employees who meet SAP requirements. HMRC will be liable to pay SAP should the employer fail to make the payments in certain circumstances.
Contractual Adoption Pay Some employers offer schemes which enhance SAP. Check your employer’s policies to see if this is relevant.  It is common for enhanced adoption pay to be conditional on employees returning to work and completing a specified period of service after adoption leave. Potential claim for breach of contract and unlawful deduction of wages for failure to pay.
Parental leave 18 weeks unpaid for each parent per child under the age of 18.  Unless there is a separate workplace agreement, leave must be taken in blocks of 1 week, subject to a maximum of 4 weeks per child in any year.  Parents of children on DLA or PIP may take parental leave in blocks of one day. The employer can ask an employee to postpone their leave request in certain circumstances but cannot refuse it. Employees with responsibility (or expected to have responsibility) for a child and who have been continuously employed for one year. Automatically unfair dismissal and unlawful detriment.Protection from employer preventing, or attempting to prevent the taking of, or unreasonably postponing, leave, in the form of a declaration and potentially compensation.
Time off for dependants Reasonable time off (unpaid) for dealing with emergencies involving a dependant. Employees – no service condition. Automatically unfair dismissal and unlawful detriment.
The right to request flexible working Qualifying employees can make a request to work flexibly, and their employers have a statutory duty to consider their requests seriously.The employer can only refuse the request for one of the eight reasons set out in the legislation. Employees with at least 26 week’s continuous service who have not made a previous request under the scheme in the preceding 12 months.(With the exception of agency workers who are returning to work from a period of parental leave, agency workers cannot request flexible working.) Potential claim of sex discrimination.Potential claim against the employer for procedural failure.
Optional ‘Keeping in Touch’ Days Women or adopters will be able to go into work (and be paid) for up to 10 mutually agreed Keeping in Touch (“KIT“) days during their maternity/adoption leave, without losing SMP, MA or SAP entitlement for those weeks.A similar (additional) scheme for up to 20 “SPLIT” days exists for parents on Shared Parental Leave.

KIT days are available to all on maternity or adoption leave. SPLIT days are available for parents on shared parental leave.

 

These days are not mandatory and must be agreed between the employer and employee before they can be enforced.Protection from automatically unfair dismissal and unlawful detriment.