The new parental leave legislation is a major concern to
businesses which fear the disruption it could cause. Law firm Wragge & Co
outlines the key issues
What is parental leave?
It is the individual right of a female or male employee to take up to 13
weeks’ unpaid leave on grounds of the birth or adoption of a child. Leave must
be taken to care for the child.
How will parental leave work?
The key elements will apply to everyone. It will be possible for employees
and employers to agree schemes between themselves. If a scheme is not agreed,
the terms of a default scheme will automatically apply.
When did it come into force?
Employees who satisfy the qualifying requirements had a right to parental
leave from 15 December 1999.
Who has the right to parental leave?
An employee has the right to parental leave if they have one year’s
continuous service, and; is the parent of a child born after 15 December 1999
who is under five years old, or is the parent of a disabled child born after 15
December 1999 who is under 18 years old, or has adopted a child under the age
of 18 after 15 December 1999. The entitlement to parental leave lasts for five
years from the date on which the child is placed for adoption or until the
child’s 18th birthday – whichever is first.
Restricting the right to children born after a certain date may lead to
problems. The Irish government is currently under attack in the European Court
for using a similar rule. The argument is that it has failed properly to
implement the European directive on parental leave. If the challenge succeeds,
we may see the UK government coming under similar attack.
Key elements
The elements below apply to everyone. Employers cannot opt out.
Period: The amount of
parental leave must be at least 13 weeks for each child.
Pay: The employee will not
have a right to be paid during parental leave.
Terms and conditions: During
the leave period, the following terms of employment will still apply: implied
duty of trust and confidence; implied duty of good faith; and terms and
conditions, if any, relating to:
– Contractual notice.
– Redundancy terms.
– Disciplinary and grievance procedures.
– Confidentiality terms.
– Exclusivity of employment terms.
Return to work
The nature of the job to which an employee is entitled to return after leave
periods depends on the length and timing of their parental leave.
Leave four weeks or less: The
employee must be given their job back at the end of the leave.
Leave greater than four weeks: The
employee must be given their job back or, if this is not possible, then a job
which is suitable and appropriate.
Leave four weeks or less but taken immediately after additional maternity
leave (AML): The employee must be
given their job back or, if this was not possible at the end of the AML period
and continues to be impossible, then a job which is suitable and appropriate.
Salary on return: The
employee must be paid a salary equal to that they would have been entitled to
had they not been absent from work because of parental leave.
Pension and seniority on return: Seniority and pension rights built up by an employee before taking
leave are retained.
The default scheme
If a company has not agreed a parental leave scheme with its employees or
their representatives, the rules of the default scheme will automatically
apply. Terms of the default scheme include:
Notice: The employee will
have to give at least 21 days’ notice. If requested, an employee must confirm
the age of the child and their relationship to them.
Employer’s right to postpone leave: The employer will have the right to postpone the leave for six
months from the date the employee wished to take the leave. This right arises
if the employer’s business would be "unduly disrupted" by the
employee’s absence eg seasonal production fluctuations, large order, education
sector. The employer must give notice of postponement within seven days of the
request for leave confirming: the reasons for postponement; and the period of
rescheduled leave.
Non-postponable leave: Leave
cannot be postponed when the employee gives notice to take it immediately after
the child is born or adopted.
Minimum period of leave: Any
part of a week which is taken as parental leave will constitute a whole week.
Maximum annual leave period: An employee cannot take more than four weeks’ leave for each child
in any year. For these purposes, a year commences on the date of adoption or
birth or the date on which the employee satisfies the qualifying condition of
one year’s employment.
Agreeing a parental leave scheme
Terms of the scheme must be agreed with the employee or incorporated into
their contract of employment through a collective or workforce agreement. If no
agreement is in place the terms of the model scheme will apply. Agreements can
improve on the key elements but cannot offer less. Even if an agreement is
made, employees can rely on the default scheme if it is better in a particular
respect.
Agreements can cover notice periods, arrangements for postponing leave and
maximum and minimum periods of leave.
Workforce agreement: An
agreement between an employer and its employees or representatives. It must be
in writing and must be effective for a specified period, not exceeding five
years. It must apply to the whole workforce or a particular group within the
workforce. It must be signed by the representatives of the workforce or
representative of the group. All employees to whom the agreement apply should
be given a copy of the agreement together with a note reasonably describing its
terms and effect.
Election of employee representative
– The employer can determine the number of representatives.
– The candidates for election must be members of the workforce or the
particular group at the date of the election.
– No employee who is eligible to be a candidate should be unreasonably
prohibited from standing for election.
– Every relevant member of the workforce or group at the time of the
election should be entitled to vote.
– Each member of the workforce or group may cast as many votes as there are
representatives to be elected.
– Voting should be in secret and the votes should fairly and accurately
counted.
– Employees should be notified of the result of the ballot as soon as
reasonably practicable.
Employee objection
If an employee has suffered detrimental treatment or been unfairly dismissed
either for taking parental leave, refusing to sign a workforce agreement or
being a workforce representative, they may take their case to an employment
tribunal.
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