Time off for parents

Disclaimer:  Whilst every effort has been made to ensure the accuracy of the information contained in the Pink Book of Legislation, we regret that we cannot be responsible for any errors. This guide is not intended to be a definitive statement of the law in England. If you require precise or detailed information on the legislation mentioned in this guide, or on the legal implications for you in particular, you should consult a professional legal adviser.

Key facts

  • All employers are required to comply with legislation related to family-friendly working.
  • Employees' rights in this area include maternity and paternity rights, adoption leave, flexible working and parental leave.

 

Family-friendly working

There are laws that support working parents in combining work with looking after their children. As well as your legal duty to uphold these rights, it is also good practice to support family-friendly working and flexible working arrangements for all types of employees.

 

Maternity rights

Regardless of how long they have worked for you, all pregnant employees, (i.e. those working under a contract of employment) are entitled to take up to 52 weeks' statutory maternity leave (SML). This comprises of:

  • 26 weeks Ordinary Maternity Leave
  • 26 weeks Additional Maternity Leave

 

Additional Maternity Leave starts immediately after ordinary maternity leave.

 

Statutory maternity pay

To qualify for Statutory Maternity Pay (SMP) an employee must have been:

  • employed continuously (some breaks do not interrupt continuous employment) for at least 26 weeks into the 15th week before the due date
  • earning an average of at least £112 a week (before tax).

 

Statutory Maternity Pay is paid for up to 39 weeks with employees receiving:

  • 90% of their average weekly earnings (before tax) for the first 6 weeks
  • £139.58 or 90% of their average weekly earnings (whichever is lower) for the next 33 weeks.

 

SMP is to be paid in the same way as the employee receives their normal wages (e.g. monthly or weekly).

Employees can choose when SMP will start, although this will normally coincide with their taking Ordinary Maternity Leave. The earliest SMP can start is 11 weeks before the due date. Employees entitled to SMP are entitled to receive it even if they decide to leave before they start receiving SMP. They do not have to repay it if they decide not to go back to work or leave their job whilst getting SMP.

 

Paternity rights

Paternity leave

Employees who have 26 weeks' service by the 15th week before the Expected Week of Childbirth are entitled to two weeks’ paternity leave at or around the date the child is born. Employees may also take paternity leave if:

  • they are not the biological father, but are the biological mother’s partner
  • they expect to have responsibility for the child’s upbringing
  • they have adopted the child or are the partner of the person who has adopted.

 

Ordinary Paternity Leave is for a period of one or two weeks. Additional Paternity Leave is available for a maximum of 26 weeks and can be taken any time from 20 weeks after the child is born until its first birthday, provided that the child's mother has returned to work. In the case of adoption, it can start anytime between 20 weeks and 52 weeks after the child starts living with the adopter.

To qualify for Additional Paternity Leave, employees must provide notice in writing at least eight weeks before the start of the leave. This must include:

  • the expected date of the baby's birth or date of notification of being matched for adoption
  • the actual date of the baby's birth, or placement of adoption
  • the start date of the Additional Paternity Leave and pay.

 

Statutory paternity pay

Similarly to maternity pay, the statutory weekly rate of Ordinary Paternity Pay and Additional Paternity Pay is £139.58, or 90% of average weekly earnings (whichever is lower).

  • Note: Maternity and paternity leave and pay requirements also apply to same-sex couples.

 

Shared parental leave and pay

Traditionally, it has only been an option for a mother to take paid time off work to look after a newborn or adopted child. Shared Parental Leave allows most couples who are in paid work and bringing up a child together the option of sharing the leave entitlement following the birth or adoption of their child.

An employee may be eligible for Shared Parental Leave (SPL) and Statutory Shared Parental Pay (ShPP). To quality for SPL, your employee must share responsibility for the child with one of the following:

  • their husband, wife, civil partner or joint adopter
  • the child's other parent
  • their parent (if they live with them)

Your employee or their partner must be eligible for maternity pay or leave, adoption pay or leave of Maternity Allowance. 

They must also:

  • have worked for you continuously for at least 26 weeks by the end of the 15th week before the due date (or date they are matched with their adopted child)
  • still be employed by you while taking SPL
  • give you the correct notice including a declaration that their partner meets the employment and income requirements which allow your employee to get SPL

They can also get ShPP if they're a worker and they're eligible for SMP or SPP.

If an employee is eligible and they or their partner end maternity or adoption leave and pay (or Maternity Allowance) early, then they can:

the rest of the 52 weeks of leave (up to a maximum of 50 weeks) as Shared Paretnal Leave (SPL)

take the rest of the 39 weeks of pay (up to a maximum of 37 weeks) as Statutory Shared Parental Pay (ShPP)

A mother must take a minimum of two weeks' maternity leave following the birth (four if she works in a factory).

ShPP is paid at the rate of £139.58 a week or 90% of an employee's average weekly earnings, whichever if lower.

 

Adoption leave

Employees who are newly matched with a child for adoption and who have 26 weeks’ service when this happens are entitled to up to 26 weeks’ Ordinary Adoption Leave, and up to a further 26 weeks’ additional adoption leave.

Employees who adopt individually are entitled to adoption leave and pay and where a couple adopt together, one member of the couple is entitled to adoption leave and pay. The couple can decide which partner will take adoption leave.

Employees don’t qualify for Statutory Adoption Leave or Pay if they:

  • arrange a private adoption
  • become a special guardian or kinship carer
  • adopt a stepchild
  • have a child through surrogacy
  • adopt a family member or stepchild.

 

Statutory adoption pay

Statutory adoption pay is 90% of their gross average weekly earnings for the first six weeks and then £139.58 or 90% of average weekly earnings before tax (whichever is lower) and is payable for the next 33 weeks.

 

Reclaiming Statutory Maternity, Paternity and Adoption Pay

You can usually reclaim 92% of employees’ Statutory Maternity (SMP), Paternity and Adoption Pay. You can reclaim 103% if your business qualifies for Small Employers’ Relief. You get this if you paid less than £45,000 in Class 1 National Insurance in the last complete tax year before the qualifying or matching week.

 

Flexible working

Introducing flexible working practices can benefit everyone in your business. Many employers believe flexible working makes good business sense and brings about a range of improvements, including greater cost-effiencies and better staff morale.

There are many different forms of flexible working. Flexible working can include:

  • part-time working
  • flexi-time
  • job-sharing
  • working from home
  • term-time working
  • staggered hours.

 

Up until 2014, only the following employees had the right to apply to work flexibly:

  • those that have a child aged 16 and under (or a disabled child aged under 18)
  • those that are the carer for an adult as defined by the Department for Business, Energy and Industrial Strategy (BEIS)
  • those that have worked for their employer for 26 weeks continuously at the date that the application is made
  • those that have not made another application to work flexibly under the right during the past 12 months.

 

However, the Government has extended the statutory right to make a flexible working request to all employees with 26 weeks' continuous employment. As an employer, you have a duty to consider these requests seriously.

Information on making and assessing an appliction for flexible working is available from the ACAS website.

 

Unpaid Parental Leave

Unpaid Parental Leave is a right for parents to take time off work to look after a child or make arrangements for the child's welfare, which may include:

  • spending more time with their children
  • looking at new schools
  • settling children into new childcare arrangements.

 

Which staff can claim it?

Employees who have, or expect to have, parental responsibility for a child and have been employed for at least a year. However, special rules apply for parents of children born, or placed for adoption, before 14 December 1999.

 

What are the main provisions?

  • Each parent is entitled to 18 weeks’ unpaid parental leave for each child, which can be taken up until the child’s fifth birthday (or, the end of the fifth year after adoption, or the child’s 18th birthday if that is sooner).
  • At the end of parental leave the employee is entitled to return to the same job, if the leave was for four weeks or less. If it was for longer, the employee is entitled to return to the same job, or if that is not reasonably practicable, a similar job.
  • You can reach your own agreement with an employee about the practicalities. If you do not, there are fall back provisions (21 days’ notice; minimum of one week blocks; maximum of four weeks a year for each child; the employer can postpone the leave for up to six months when particularly disruptive to the business, except for leave requested immediately after the child is born/adopted).
  • You do not have to keep records, but you can be asked by a subsequent employer about how much leave an employee has taken (you can also ask a previous employer).
  • You are entitled to ask to see evidence to confirm that an employee is the parent or the person legally responsible for the child.
  • There are additional entitlements for parents of disabled children.

 

  • Note: employees also have the right to take a reasonable period off work to deal with an emergency involving a dependent.

 

Further guidance

  • The Rights and Responsibilities at Work section of ACAS's website has a very useful range of online guides to maternity, paternity, adoption and flexible working policies including the advice booklet 'The right to apply for flexible working'.
  • For further information, you can call the ACAS helpline: 08457 474747.