Two members of a relatively small sales team got married last year, and the woman is now five months pregnant. They are both key employees in terms of bringing in work for the whole business. We are concerned that they have requested to take leave at the same time, albeit some of it unpaid. It would leave the team very short staffed for at least one month. What, if anything, can we do without risking a potential discrimination claim?
Both men and women are now entitled to paternity and maternity leave, and you cannot tell staff when to take their leave, or treat them differently because of their leave entitlement. However, if you have a good relationship with your employees, you may feel that you could ask them to take it at a later date when it is more suitable for the company. However, no new mothers are permitted to work during the two weeks following childbirth.
If, however, one or both of your employees are talking about unpaid parental leave, it may be a different story. Staff with more than one year’s continuous employment who expect to have parental responsibility for their child have the right to take up to 13 weeks’ unpaid parental leave in the first five years of the child’s life. (It is 13 weeks per child, so if she has twins, she will be entitled to 26 weeks.) If the child is disabled, this entitlement is 18 weeks during the first 18 years of the child’s life.
However, parental leave can be postponed by the employer for up to six months if the business would be particularly affected by the leave. The only sectors exempt from this element of the parental leave legislation are the Police Force, Armed Forces and some fishing crews.
Employers and employees can agree their own procedures for how to take parental leave, and you might want to consider establishing such agreements for the entire workforce. If so, remember that this agreement will need to be part of the employees’ employment contract.
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If you do decide to go against the couple’s wish, remember to carefully consider if it really is justifiable. Many businesses still fall foul of the Sex Discrimination Act, especially in relation to pregnancy issues, and in these cases there is no upper limit on the level of compensation.
Rachel Blythe, solicitor, Simpson Millar
