In a nutshell
Employees are entitled to leave in a number of different family-related situations:
- Maternity leave: All women, regardless of their length of service, are entitled to take Statutory Maternity Leave (SML).
- Paternity leave: Paternity leave can be taken by the biological father of the child; the biological mother’s husband or partner, or someone who expects to have the main responsibility (alongside the mother) for the child’s upbringing. This person must have 26 weeks’ continuous service at the 15th week before the Expected Week of Confinement (EWC).
- Adoption leave: Statutory adoption leave (SAL) mirrors statutory maternity leave and can be taken by one person from a couple adopting a child. An employee needs no qualifying service to take SAL.
- Shared Parental Leave (SPL): SPL allows an employee who is entitled to take maternity or adoption leave to end their leave and to share the remainder with their partner. Employees who are eligible to take SML/SAL, or who are entitled to Statutory Maternity Pay, Statutory Adoption Pay or Maternity Allowance are entitled to take SPL.
- Parental leave: Parental leave is unpaid leave taken to care for a child aged up to the age of 18 years. The employee must have at least one years' service.
- Right to time off for those with dependents: This is unpaid time off, intended to be used for emergencies only. There is no qualifying service required to take this leave.
- Parental Bereavement leave: employees who lose a child under the age of 18, or suffer a stillbirth from the 24th week of pregnancy are entitled to two weeks’ leave.
There is statutory pay available for eligible employees on maternity leave, paternity leave, adoption leave and shared parental leave so you will need to establish what maternity pay or paternity pay or adoption pay or shared parental pay will need to be provided while the employee is on leave.
What are the risks?
Managing family leave is one of the most common people management issue that you’ll face as an employer but every situation is unique to it’s worth keeping on top of latest advice and legislation. Good family leave policies can act as a powerful attraction and retention tool for your employees and being aware of rights and responsibilities in this area are vital to help you avoid any potential discrimination claims.
Key steps to managing this issue
When it comes to managing different types of family leave, you should follow these key steps to manage your employees effectively:
1. Understand different types of leave and pay available
As an employer you need to understand what leave your employees are entitled to, the rights associated with these types of leave, as well as knowing what pay you will need to provide while they are on leave.
Amount of leave
Statutory Maternity Leave (SML) consists of two periods – Ordinary Maternity Leave (OML) which lasts for 26 weeks, and Additional Maternity Leave (AML) which also lasts for 26 weeks. AML follows directly after OML. This means an employee can be off work for a total period of 52 weeks (ie a year).
There is also a period of Compulsory Maternity Leave (CML) which forms part of OML. This is a period of two weeks (four weeks if the woman works in a factory or similar environment) immediately following the birth of a baby. A woman is not allowed to work during CML.
When maternity leave can start
SML can start at any time from 11 weeks before the Expected Week of Confinement (EWC). The EWC is the date that the baby is due, according to a medical practitioner. The EWC is confirmed on a form called a MATB1 which is given to a woman after 20 weeks of pregnancy.
If a woman is absent from work with a pregnancy-related illness in the four weeks before the EWC the employer can insist that she starts her SML at that point.
To qualify to take SML the woman must give her employer notice that she is pregnant, and that she wants to take SML, by the end of the 15th week before the EWC. The employer must then respond to this within 28 days, confirming the date that the SML will end (which will be the full 52 weeks, or a shorter period if the woman has indicated that she does not want to take the full 52 weeks). If you do not confirm the date of return you cannot take any action if the women does not return as expected.
If a woman has a stillborn baby (a baby born after 24 weeks of gestation), or a live birth but the baby subsequently dies, she is entitled to take her full SML. If a baby is born prematurely, and before the woman’s SML has started, the leave must start the day after the baby is born.
Statutory Maternity Pay
Statutory Maternity Pay (SMP) is paid for a maximum of 39 weeks. The first six weeks are paid at 90% of salary and the remaining 33 weeks is paid at the statutory rate (this rate usually changes each year and the current rate can be found on the Gov.uk website). To calculate 90% of salary, take the average weekly earnings of the woman over the two months before starting maternity leave (if the woman is paid monthly) or the eight weeks before starting maternity leave (if the woman is paid weekly). To be eligible for SMP the woman must have been employed by her employer for at least 26 continuous weeks by the 15th week before the EWC.
Amount of leave
Statutory paternity leave is for one or two weeks (the employee chooses whether to take one week or two, with two being the maximum). It has to be taken as one block (so it cannot be taken as one week, and then another week a few weeks’ later). It also cannot be taken as individual days.
Paternity leave can be taken by:
- the biological father of the child;
- the biological mother’s husband or partner; or
- someone who expects to have the main responsibility (alongside the mother) for the child’s upbringing.
Paternity leave can be taken by those adopting as well as those who have fathered a baby. It also applies to same sex couples as well as heterosexual couples.
To take paternity leave the individual must have at least 26 weeks’ continuous service with their employer. In the case of birth this must be 26 weeks’ service by the end of the 15th week before the EWC. In the case of adoption this must be 26 weeks’ service by the end of the week in which the adopter is notified of being matched with the child.
Paternity leave is paid at the statutory rate. Information on the latest statutory rates can be found on the Gov.UK website.
Amount of leave
Statutory Adoption Leave (SAL) mirrors Statutory Maternity Leave (SML) meaning that an employee gets 26 weeks of Ordinary Adoption Leave (OAL) immediately followed by 26 weeks of Additional Adoption Leave (AAL). An employee needs no qualifying service to take SAL.
If a couple are adopting a child (note that the leave applies to heterosexual and homosexual couples) then only one person from the couple can take SAL.
An adopter must tell their employer that they intend to take SAL no more than seven days after the date that they were informed by the adoption agency that they have been matched with a child for adoption, unless it is not reasonably practicable to do so. They should tell the employer when they expect their leave to start and end. They can be asked to provide a certificate from the adoption agency confirming the placement.
You should then write to the employee confirming the leave and the date that it will end. If you do not do this you cannot take action if the employee does not return as planned.
When adoption leave can start
SAL can start 14 days before the expected date that the child is to be placed with the couple, and the latest date it can start is the date that the placement commences.
If a placement fails the adopter must return to work eight weeks after the placement ends, or at the end of AAL if that is earlier.
Statutory Adoption Pay
Statutory Adoption Pay (SAP) mirrors Statutory Maternity Pay. It is, therefore, six weeks at 90% of salary followed by 33 weeks at the statutory rate. To qualify for SAP the employee must have at least 26 weeks’ continuous service by the end of the week in which the employee is notified of being matched with the child.
Shared Parental leave (SPL)
SPL allows an employee who is entitled to take SML/SAL to end their leave and to share the remainder with their partner. The Compulsory Maternity Leave period has to be taken by a mother who has given birth, and therefore only 50 weeks of SML can be shared. The total leave taken by the two partners cannot exceed 52 weeks. Any SML/SAL already taken is deducted from the 52 weeks, and the remainder is the amount that can then be shared.
Employees who are eligible to take SML/SAL, or who are entitled to Statutory Maternity Pay, Statutory Adoption Pay or Maternity Allowance are entitled to take Shared Parental Leave (SPL) if they meet the requirements of the ‘continuity of employment’ test. In addition, the person taking SPL must share responsibility for raising the child and must meet the requirements of the 'employment and earnings test'.
The employee must give at least eight weeks’ notice of their intention to take SPL. SPL can be taken as discontinuous or continuous leave. Continuous leave is when one partner takes a period of leave, followed by another. An employer cannot refuse a valid request for continuous leave. Discontinuous leave is any other arrangement of leave, maybe taking leave at the same time, or alternating periods of leave. An employer can refuse a request for discontinuous leave but must then allow continuous leave instead if the employee wants this instead.
Shared Parental Pay
There is a total of 39 weeks of Shared Parental Pay. Any SMP or SAP that has already been taken is deducted from this 39 weeks. The remainder is then paid to whichever of the partnership is taking the leave. The entitlement to 39 weeks of pay is per couple, not per individual. All 39 weeks of Shared Parental Pay are at the statutory rate.
Parental leave is unpaid leave taken to care for a child aged up to the age of 18 years. The total amount of leave that can be taken is 18 weeks, and the statutory rules are that no more than four weeks can be taken in any one year (although an employer can substitute that with their own rules). Leave must be taken in blocks of one week. The leave must be taken to care for the child, it cannot be taken for any other reason.
To be eligible to take Parental Leave the employee must be the natural or adoptive parent, or have formal parental responsibility for the child and must have worked for the employer for at least one continuous year. Both parents can take leave in respect of the same child.
The Parental Leave entitlement is to leave per child, so if (for example) an employee had twins they have the right to 18 weeks’ leave for each child.
An employee must give 21 days’ notice of their request to take Parental Leave. If the employer concludes the leave would disrupt the business it can be postponed once for up to six months. It cannot be postponed if the reason for taking it is to be present at a birth or adoption placement.
Right to time off for those with dependants
Employees are entitled to take unpaid time off to deal with an emergency related to a dependant, who is defined as being a spouse, child, parent, someone living the in the same house who is not a lodger/tenant/boarder/employee or someone who is dependent on the employee. There is no qualifying service for this right, and no limit on the time that can be taken (although it should just be to deal with the emergency).
Parental Bereavement leave
From 6 April 2020 the Parental Bereavement (Leave and Pay) Act 2018 comes into force. The Act gives employees who lose a child under the age of 18, or suffer a stillbirth from the 24th week of pregnancy, on or after this date, the right to two weeks’ leave. Regulations specify that the two weeks’ leave may be taken as one block, or as two non-consecutive one week blocks, at any time during the 56 weeks following the child’s death.
The leave will paid at the same statutory rate as other family friendly rights if the employee has 26 weeks’ service.
2. Keep records
It is important to keep records so that you are able to correctly calculate the pay that is associated with these different types of leave. Any documents related to payment could be inspected by the HMRC. It is also important to keep records to ensure that employees are getting the right amount of leave. The records should show what leave has been taken by each employee and what payment was made in relation to that leave.
3. Avoid discrimination
Family friendly policies must be applied fairly and consistently. In particular, be careful to ensure that you do not treat men or women less favourably than each other, and that you treat heterosexual and homosexual couples equally. For example, if you pay enhanced paternity pay for a father following the birth of a child you must offer the same to a same sex partner taking paternity leave following the adoption of a child.
4. Be consistent if you offer anything above the statutory minimum
Some employers offer more than the minimum required by law, for example extending the amount paid in Statutory Maternity Pay or Statutory Adoption Pay. If you do anything that is additional to the law make sure that you offer it consistently to all employees, or you have clear rules setting out who is and is not allowed access to the additional benefit. Not having clear rules could lead to inequality of treatment and discrimination claims.
5. Explain the reason if you refuse leave
At times an employee might request a period of leave that they are not entitled to take (for example, requesting Parental Leave when not having one years’ service). If you do have to refuse leave confirm this in writing, clearly stating the reason for the refusal.
6. Have a plan to help employees settle back in to work
There are varying rights for employees returning from different types of family leave so make sure you are familiar with these; for example, a woman who returns to work at the end of AML, or OML followed by a period of more than four weeks' parental leave, is entitled to return to her same job, unless this is not reasonably practicable, in which case an alternative job can be offered. This must be on terms and conditions that are no less favourable than the terms that applied before she commenced her maternity leave.
It’s worth having a return plan in place for employees returning from family leave (especially those who have taken a longer period of leave) to help them perform effectively on their return and address any issues quickly. Make sure line managers are prepared for an employee’s return and that everything they need is ready for their first day. It can help to set up 're-inductions' to help them assimilate back into the workplace and update them on any changes to systems and processes.
When an employee returns from family leave they may put in a request for flexible working; you can refer to the section on flexible working for guidance on how to manage these requests.
Tools and resources
Read an extract taken from Debbie Mitchell's 50 Top Tools for Employee Engagement: A Complete Toolkit for Improving Motivation and Productivity published by Kogan Page on keeping in touch (KIT) days.
- Acas has a range of materials relating to leave for Parents and Carers
- Guardian article on how to manage maternity leave in a small business
- Gov.UK information on maternity leave and pay
- Gov.UK information on paternity leave and pay
- Gov.UK information on adoption leave and pay
- Gov.UK information on shared parental leave and pay
- A maternity pay, adoption pay and paternity pay calculator is available from Gov.UK
- Business advice article on managing maternity leave
- CIPD factsheet on maternity, paternity and adoption rights
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