Mothers, fathers and partners, including same-sex partners and adoptive parents have statutory rights to maternity, paternity leave, adoption and shared parental leave, writes the CIPD (The Chartered Institute of Personnel and Development). Other important ‘family-friendly’ measures include unpaid parental leave, time off for emergencies involving dependents and the right to request flexible working.
Many employers offer more than these minimum rights in contractual maternity and parental leave policies. As well as enhancing minimum statutory leave and pay entitlements, employers can provide flexible working arrangements and an inclusive, family-friendly working environment. Employers should be proactive in supporting and retaining employees who have an ongoing need to balance work and childcare.
The UK legal position
Most relevant UK legislation is in the Employment Rights Act 1996, the Employment Relations Act 1999, the Employment Act 2002, the Work and Families Act 2006, the Children and Families Act 2014 and the Protection from Redundancy (Pregnancy and Family Leave) Act 2023. Any unfavourable treatment of a woman because of her pregnancy, childbirth or maternity is likely to constitute pregnancy and maternity-related discrimination.
Flexible working
The UK Government has confirmed the removal of the 26-week qualifying period; flexible working will be a day-one right to request from 6 April 2024. The period within which employers must respond to flexible working requests is also reduced from three to two months. In addition, employees can now make two flexible working requests in any 12-month period. Employers must not reject a flexible working request without having discussed it with employees and explored other options with them. Importantly, employees no longer have to explain the potential impact on employers or suggest ways these effects could be mitigated.
Neonatal leave
The new Neonatal Care (Leave and Pay) Act 2023 will provide employed parents, whose babies need neonatal hospital care, leave for seven days or more. This act received Royal Assent in May 2023 but is not expected to come into force until 2025.
Redundancy protection
The Protection from Redundancy (Pregnancy and Family Leave) Act 2023 has been laid before UK parliament and, if passed, will take effect from 6 April 2024. The act extends the period in which employees are entitled to be offered a suitable alternative vacancy. Previously redundant employees were entitled to any suitable alternative role (that was not substantially worse than the role that they are being made redundant from) during their whole period of maternity leave. This act extends redundancy protection to cover pregnancy, and for 18 months after the birth or placement of a child. This applies to those on maternity, adoption or shared parental leave.
Carer’s leave
The Carer’s Leave Act 2023 has been laid before UK parliament and is scheduled to come into force on 6 April 2024. The act gives unpaid carers of dependants the statutory right to take up to one week (five working days) of unpaid leave per year. This is a day one right and applies to employees with dependants who have a longterm care need such as physical or mental difficulties, an injury or disability, or issues related to old age.
Maternity rights
At the point at which a woman becomes pregnant, they are automatically protected against discrimination. The period between the start of the pregnancy to the end of the maternity leave is known as the ‘protected period’ under the Equality Act 2010. If the woman has no statutory right to maternity leave or if she suffers a miscarriage or stillbirth before 24 weeks of pregnancy, the protected period will end two weeks after the date of childbirth or after the end of the pregnancy.
Antenatal care
Pregnant employees are entitled to paid time off for antenatal medical and other appointments recommended by the doctor, nurse or midwife. Qualifying fathers and partners can take unpaid time off to attend up to two of those appointments. This can be paid, and any extra time taken with the employer’s consent or taken as holiday.
Maternity leave
Key terms:
- Statutory Maternity Leave (SML): 52 weeks of leave a woman may take. There’s no qualifying period for the leave.
- Shared Parental Leave (SPL): the shared leave available to either or both parents.
The earliest date maternity leave can start is the beginning of the eleventh week before the baby is expected. The woman must notify her employer with details of her expected date and when she chooses to start maternity leave. The employer must respond within 28 days, stating the expected date of return after the maternity leave. Employers should assume all 52 weeks’ leave will be taken unless notified to the contrary. Mothers can curtail part of the leave to enable their partner to take SPL. If returning to work earlier than planned, the employee should give at least eight weeks’ notice, unless shortened notification periods are agreed.
There is a distinction between the first six months and second six months of SML. The first six months or 26 weeks of leave is known as Ordinary maternity leave (OML). Employees have the right to return to the same job on the same terms as before maternity leave during this period. The second six months or 26 weeks is known as Additional maternity leave (AML). Employees who take more than six months’ leave have the right to return to the same job or a similar one if it’s genuinely not reasonably practicable to return to the former job. Other key terms include Compulsory maternity leave which is the two weeks following the birth which all new mothers must take, even if they wish to return to work as soon as possible.
Maternity pay
Mothers are entitled to up to 39 weeks’ Statutory Maternity Pay (SMP), they must:
- Meet certain National Insurance contributions lower earnings limit requirements
- Have 26 weeks’ continuous service (assessed at the 15th week before the baby is due).
The first six weeks SMP is paid at 90% of average weekly earnings and the remainder at the lower statutory level. Current rates can be found on our Statutory rates page or from GOV.UK. Some organisations have more generous contractual terms paying during the entire leave period. Women who do not qualify for SMP might qualify for Maternity Allowance (MA).
Other benefits during maternity leave
All contractual terms (such as holidays or benefits) apart from remuneration continue during SML. This means that paid holiday entitlement accrues during maternity leave. Pension arrangements are more complex. CIPD members can see more in their Q&As on maternity, paternity, shared parental and adoption leave and pay.
Other rights
Pregnant women are also entitled to other rights, including:
- Special protection in a redundancy situation. They should be offered a suitable alternative vacancy if one is available. From 6 April 2024 these protections will extend from 12 months to 18 months, from the child’s date of birth or the Expected Week of Childbirth.
- Pregnant women have the right to request risk assessments during pregnancy.
- There are rights to request alternative work where any risks to the expectant mother’s or baby’s health can be avoided.
- Full pay on maternity suspension if health and safety risks can’t be avoided by reasonable changes to working conditions.
- Women are protected from detriment, unfair treatment or dismissal because of the pregnancy, maternity leave, etc. For example, not allowing employees to return to work because of breastfeeding.
- Up to ten ‘keeping in touch’ (KIT) days during maternity leave without losing any maternity pay if available.
Paternity leave
The main eligibility factors for basic paternity leave are:
- Continuous employment for 26 weeks ending with the 15th week before the baby’s due.
- The employee must be the baby’s biological father or the partner of the mother who has (or expects to have) responsibility for the baby’s upbringing.
Unless agreed otherwise, the basic statutory leave of two weeks maximum must be taken between:
- The baby’s birth date or any day of that week, and
- Within 56 days of the baby’s birth date.
The employee must inform the employer of their intention to take paternity leave by the end of the fifteenth week before the baby is expected, notifying:
- The start date of the leave to be taken.
- The week the baby is expected.
- The duration of leave to be taken.
See CIPD’s Managing extended paternity leave report.
The rate of Statutory Paternity Pay (SPP) is the same as SMP.
Rights during and after paternity leave
An employee who qualifies for paternity leave is entitled to:
- Return to the same job.
- Return to the same terms and conditions of employment.
- Not be subjected to a disadvantage, unfair treatment or dismissal.
Shared parental leave
Shared parental leave (SPL) enables employed mothers to switch part of their leave and pay into SPL and pay, provided both parents satisfy the eligibility requirements. The mother and partner must have worked for their employers continuously for at least 26 weeks up to the 15th week before the expected week of childbirth. The mother can choose whether to give up her leave and the parents can choose how to share any SPL, either taking it in turns or taking time off together. Eligibility, notification and variation procedures are complex but at least eight weeks’ notice must be given before the SPL starts. Unpaid parental leave is a different form of leave, giving qualifying employees up to 18 weeks for each child or adopted child up to their 18th birthday. Employed parents have the right to two weeks’ bereavement leave following the death of a child, paid at a set rate if the parent has 26 weeks’ service.
Adoption rights
Statutory adoption leave, and pay, in the UK have been broadly in line with statutory maternity leave and pay since April 2015 with up to 52 weeks’ adoption leave available. From 6 April 2024, parents on adoption leave have the right to be prioritised for redeployment offers in a redundancy situation, for 18 months after the child’s date or placement or date of entry into Great Britain.
Statutory Adoption Pay (SAP) is payable for 39 weeks and there’s a qualifying service requirement of 26 weeks’ continuous employment.
Guidance for employers
- Incorporate maternity, paternity and adoption rights in their equality, diversity and inclusion framework, and work-life balance policies and promote these to staff.
- Ensure that line managers understand how to implement the organisation’s maternity, paternity and parental leave policies
- Monitor take up to ensure the needs of both the business and the individual are met.
Flexibility for parent returners
Employers must ensure employees are supported when they return to work after maternity. paternity or adoption leave. There are a huge number of benefits to this, including:
- access to a wider talent pool of people with valuable experience and expertise.
- overcoming skills shortages, and the struggle to recruit or develop people with specific skills.
- supporting gender and age diversity at all levels, by helping to increase the number of experienced women across an organisation.
- creating role models for younger employees, this also includes fathers who have to combine work and family commitments.
- tackling the gender pay gap – the increased presence of women in senior roles is an important factor in closing the gender pay gap.
- enhancing internal and external reputation – being seen to encourage and support returners sends a clear message to your own employees and the market that you are a supportive employer. This will, in turn, help recruitment and retention.
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