Right to parental leave begins

Executive Summary

• The Government is implementing parental leave with a “light touch”
• An employee with one year’s continuous service is entitled to parental leave
• It is suggested that parental leave relates to a child born or adopted after 15 December 1999
• Children born before that are not covered
• The fact that parental leave does not require to be paid has led to concern that many parents will be unable to utilise it

As a result of the provisions in the 1999 Act there is, for the first time in the UK, a right to parental leave, derived, as noted previously, from the Parental Leave Directive (although the limitations imposed in respect of qualification for this right are a source of some controversy).

The right to parental leave is set out in (new) s76-81 ERA (derived from Chapter II of Schedule 4 of the 1999 Act) although, as with maternity leave, the Secretary of State is left to flesh out the right and the qualifying conditions for entitlement by means of Regulations.

The Government made it clear in its Consultation document that it intended “to implement parental leave with a light touch and as little bureaucracy as possible”.  With that in mind it explained that one of the fundamental principles of its approach is to enable employers and employees to agree schemes which meet the needs of individual businesses although it sets out a “model” or “default” scheme which will automatically apply unless employers and employees put their own scheme in place.

A contractual scheme agreed by means of a collective or workforce agreement can be more or less generous than the default scheme but it cannot undermine the minimum requirements set out in the parent legislation and the core Regulations.  (The default scheme is set out in Schedule 2 of the Regulations).  If an employer agrees a parental leave policy individually with an employee the employee is allowed to rely upon the provisions of the default scheme if they are more favourable, in any particular respect, than the individual contractual agreement.

The Government’s “minimal bureaucracy” approach is also evident in its decision not to impose any legal requirement on employers to keep records in connection with parental leave entitlement!

The entitlement to parental leave

Regulation 13 specifies that an employee who has one year’s continuous service and who has, or expects to have, responsibility for a child is entitled to parental leave.  “Employee” is defined as someone who has entered into or works under a “contract of employment” which, in turn, is defined as “a contract of service or apprenticeship, whether express or implied”.

An employee has responsibility for a child if he/she is:

• someone who has parental responsibilities for a child under the Children (Scotland) Act 1995 or has acquired them in accordance with the provisions of that Act or
• someone who has been registered as the child’s father under the provisions of section 18(1) or (2) of the Registration of Births, Deaths and Marriages (Scotland) Act 1965.

However, Regulation 13(3) states:

“An employee is not entitled to parental leave in respect of a child born before 15 December 1999, except for a child who is placed with the employee on or after that date for adoption by him”.

In the Consultation document the Government identified the eligible groups thus:

• The parent (named on the birth certificate) of a child born or adopted after 15 December 1999 who is under 5 years old or
• An individual who has acquired formal parental responsibility for a child born or adopted after 15 December 1999 who is under 5 years old or
• An individual who has adopted a child after 15 December 1999 who is under 18 years old.

(These definitions mean that someone who simply cohabits with a birth parent will not be entitled to parental leave while a natural parent will be so entitled even if they do not live with the child).

It should be noted that the Consultation document suggested that parental leave relates to a child born or adopted after 15 December but this does not accord with the wording of Regulation 12(3) which specifies that children born before 15 December are not covered.

It is notable (and controversial) that the Government has given this right only to those responsible for children born or adopted on or after 15 December 1999.  In effect, this policy will deprive millions of parents who currently have young children (under 5) of the right to parental leave.  In effect, the Government is “phasing” in parental leave over a five year period.  It is debatable whether this is in accordance with the requirements of the Parental Leave Directive and it is understood that the trade union movement in the UK may be considering a challenge to the legislation on this basis.

A similar provision, which excludes parents of children born or adopted before 3 June 1996 (the date of the Directive’s adoption) is being challenged in the Republic of Ireland.  The former EU Social Affairs Commissioner has written to the Irish Government, stating that by requiring children to have been born after the date of the Directive’s adoption the Irish Government has added a condition which is not permitted by the Directive.  The European Commission is expected to deliver a “reasoned opinion” on the matter.

What is parental leave?

“Parental leave” is not defined in the 1999 Act but Regulation 12 refers to “absence from work for the purpose of caring” for a child.  The Consultation document states:

“What is parental leave?

13. It is leave taken to look after the child or to make arrangements for the good of the child.  The reasons for the leave need not be connected with the child’s health.  Settling the child in at a new playgroup could be covered, for example.”

Extent of parental leave

Regulation 14 specifies that an employee is entitled to 13 weeks leave in respect of a child, a week’s leave being a period of absence from work equal in duration to the period for which the employee is normally required to work.  In other words, if an employee normally works for two days per week then a week’s leave will be two days and there will be a total entitlement of 26 days leave.  In the event that an employee’s working week varies in length a week’s leave will be calculated by averaging the working week over a fifty two week period (Reg.14(3)).  If an employee changes employer, having taken parental leave with the first employer, he/she will only be entitled to the balance of the 13 week period and will have to re-qualify to take leave by working for one year continuously.  The draft Regulations specified that if an individual took leave for a shorter period of time than his/her normal working week then that would be treated as a week for the purposes of the thirteen week entitlement.  However, the final version of the Regulations does not contain such a provision. Instead, there are now provisions for aggregating periods of leave shorter than a working week to make up a complete working week (Reg.14(4)).

The leave must be taken:

• on or before the fifth birthday of the child; or
• on or before the fifth anniversary of adoption of a child; or
• in the case of a child entitled to disability living allowance on or before the child’s eighteenth birthday unless the employer has postponed the leave (in terms of the default scheme) beyond that date in which case it can still be taken.

In the case of multiple births (twins, triplets) thirteen weeks’ leave must be provided for each child.  For the avoidance of doubt where both parents have parental responsibility for a child they will each have the right to 13 weeks’ parental leave.  The primary legislation allowed the Secretary of State to make regulations governing the transfer of leave from one parent to another but no such regulations have been made, the Government being keen to encourage both parents to play a parenting role.

Notification requirements and postponement provisions

New section 79 ERA 1996 allows the Secretary of State, inter alia, to make regulations in relation to notice requirements.  Indeed, this section allows the Secretary of State to make any provision by regulation which he considers necessary or expedient to implement the Parental Leave Directive or in respect of any matter arising out of the UK’s obligations under the Directive!

No statutory provisions have, in fact, been made in relation to notice requirements but the default scheme does detail a specific regime which may well commend itself to employers (see below).

Rights during parental leave

New section 77 ERA 1996 makes it clear that an employee is not entitled to “remuneration”

during parental leave and gives the Secretary of State power to prescribe which benefits and obligations under terms and conditions of employment will subsist during a period of parental leave.

In Regulation 17 it is made clear that the benefits and obligations which will continue to apply during parental leave are the same as those which apply during AML.

The fact that parental leave does not require to be paid has led to concern that many parents will not be able to utilise the entitlement to such leave.  The Secretary of State for Trade and Industry has indicated that his department will monitor the take up of statutory (unpaid) parental leave and report back to him.  It is, of course, open to employers to continuing paying (whether in whole or in part) employees who are on parental leave and, indeed, to continue to provide them with any other employment related benefits. The Income Support (General) Amendment (No.2) Regulations 1999 (S.I. 1999/3329), which came into force on 5 January 2000, have widened the availability of income support for those on unpaid parental leave.

Right to return after parental leave

Regulation 18(1) specifies that an employee who takes parental leave for a period of four weeks or less (except where that is immediately after AML) is entitled to return from leave to the job in which she was employed before her absence. Those who take parental leave for a period of more than four weeks are entitled to return to the same job or, if it is not reasonably practicable for the employer to permit him/her to return to that job, to another job which is both suitable for him/her and appropriate for him/her to do in the circumstances. (i.e. an identical right to that available on return from AML) (Reg.18(2)).  Those employees who take parental leave immediately after AML are entitled to return to the same job unless it would not be reasonably practicable to let them do so after AML, and it remains not reasonably practicable to let them do so at the end of parental leave in which case they are entitled to return to a suitable job which is appropriate in the circumstances.

So far as remuneration is concerned, an individual on parental leave is entitled to return on terms and conditions no less favourable than those which would have applied had he/she not been absent on parental leave.  The same applies in relation to other terms and conditions except those relating to “seniority, pension and similar rights”, in respect of which the period of employment pre-parental leave is to be treated as continuous with that on return.

Contractual right to parental leave

An employee is entitled to take the benefit of a more advantageous contractual right to parental leave (Regulation 21).

Default provisions / the model scheme

The Government is keen to ensure that there is scope for employers and employees to agree how the right to parental leave should actually be implemented in practice, bearing in mind the needs of individual organisations.  To that end, parental leave agreements may be decided between them and incorporated within contracts of employment by means of individual agreements or collective/workforce agreements (as defined in Schedule 1 of the Regulations), failing which the default provisions, set out in Schedule 2 of the Regulations, will apply (Regulation 16).  As noted above, where there is a contractual agreement agreed through a collective or workforce agreement the provisions may be more or less beneficial than the default scheme, as long as they comply with the floor of rights set out in the primary legislation and the Regulations.  The Government Consultation paper explains the position thus:

“Designing a scheme

The scheme can be more generous than the provisions of the regulations.

Employees could be allowed to take their leave in the form of reduced hours working.  An agreed scheme could allow people to take parental leave to care for children who are older than five or who were born or adopted before December 1999.  But it cannot impose lower age limits or a later birth or adoption date.

For each employee, the scheme must be given legal force by being written into the employee’s contract of employment.  Existing employees must agree to the change, unless the contract provides for the terms of collective or workforce agreements to become part of employment contracts automatically.  If this is not done, or if no agreement is in place, the model scheme will automatically apply to the individual concerned”.

The terms of the model/default scheme specify that:

An employer can ask for such evidence as may be reasonably required of the employee’s parental responsibility for the child in respect of whom leave is taken together with the child’s date of birth (or date of placement for adoption) and, in the case of a child entitled to disability living allowance, proof of that fact;

An employer is entitled to at least 21 days notice of commencement of leave together with specification of the start and end date of the period of leave;

In the case of a father who wishes to take leave on the date of birth of a child the employer is entitled to notice of the EWC to be given at least 21 days in advance of the commencement of that week.  An employer cannot postpone leave to be taken at the time of the birth or adoption of a child but can do so otherwise where the operation of the business would be unduly disrupted if the leave was taken.  In these circumstances the employer must inform the employee within 7 days of the request for leave and allow the employee to take leave no later than 6 months after the start of the original proposed leave period.  The maximum leave permitted in respect of one child in any one year is 4 weeks and leave must be taken in blocks of one week (whatever constitutes a week for the employee in question) or a multiple of that period (except where the child is entitled to disability living allowance).

Maternity leave and parental leave - protection from detriment

A new section 47C is inserted into the 1996 Act.  It gives employees the right not to be subjected to any detriment by any act or failure to act on the part of an employer which is done for a prescribed reason.  The prescribed reasons are that the employee:

n is pregnant or has given birth to a child (individuals can therefore rely on this right rather than the Sex Discrimination Act 1975, if appropriate);

• is the subject of a relevant requirement, or a relevant recommendation, as defined by section 66(2) of the 1996 Act (relates to medical suspension on maternity grounds);
• took, or availed herself of the benefits of, ordinary maternity leave;
• took additional maternity leave;
• took parental leave, or time off under section 57A of the 1996 Act (time off for dependants);
• declined to sign a workforce agreement for the purposes of the Maternity and Parental Leave etc Regulations.

Protection is also given to those who are workforce representatives, or candidates for such positions, and who are subjected to a detriment because they performed, or intended to perform, any functions in these capacities”.

However, Regulation 19 makes it clear that it is not to be applied to the detriment of dismissal.  Instead, this is covered by the substitution of a new section 99 into the ERA 1996 (done by the sixteenth consequential amendment set out in Part III of Schedule 4 of the 1999 Act) and Regulation 20.

The new section 99 ERA 1996 states that an employee who is dismissed will be regarded as unfairly dismissed if:

• the reason (or principal reason) for dismissal is a prescribed reason, or
• the dismissal takes place in prescribed circumstances.

In terms of Regulation 20(1) an employee will be regarded as unfairly dismissed if the reason (or principal reason) for dismissal is a reason relating to:

• pregnancy or the fact that the employee has given birth
• the application to the employee of a medical suspension requirement or recommendation on maternity grounds
• the fact that the employee took, or availed herself of the benefits of OML
• the fact that the employee took:

1. AML
2. parental leave
3. time off for dependants

The fact that she declined to enter into a workforce agreement for the purpose of the Regulations.  It will also be automatically unfair to dismiss an employee who is a workforce representative or candidate for such a post if the reason for dismissal is that the employee performed or intended to perform functions or activities in such capacities.  Similarly there will be an automatically unfair dismissal where a woman on OML or AML is dismissed by reason of redundancy and there is a failure to offer her any suitable alternative employment which is available.

By dint of Regulation 20(2) dismissal by reason of redundancy will also be unfair where it can be shown that the reason (or principle reason) for selection was one of those reasons set out above and the circumstances constituting the redundancy applied equally to one or more employees in the same undertaking who were not dismissed and who held positions similar to that held by the employee.

Regulation 20(1), however, will not apply if:

• immediately before the end of her additional maternity leave period (or, if it ends by reason of dismissal, immediately before the dismissal) the number of employees employed by her employer, added to the number employed by any associated employer of his, did not exceed five, and
• it is not reasonably practicable for the employer (who may be the same employer or a successor of his) or an associated employer to permit her to return to the job she performed before her absence or a suitable alternative job.

Similarly the automatically unfair dismissal provisions under  Regulation 20(1) will not apply if it is not reasonably practicable, for a reason other than redundancy, for her employer to permit her to return to her job (or a suitable alternative) but she is offered such a job by an associated employer which she accepts or unreasonably rejects.

If an employer seeks to rely on these exclusions it is for the employer to show that the provisions in question are satisfied (Regulation 20(8)).

Complaint to employment tribunal

New s80 ERA 1996 (as inserted by Schedule 4, Chapter II of the 1999 Act) will allow an employee to present a complaint to an employment tribunal if he/she considers that his/her employer has prevented or attempted to prevent the taking of parental leave or has unreasonably postponed a period of parental leave.  Such a complaint is to be presented within three months of the act complained of or, if it was “not reasonably practicable” to present the complaint in that time, within such further period as the tribunal considers reasonable.  It is interesting to note that the extension of time provisions are those derived from the law of unfair dismissal rather than the looser provisions which apply under discrimination legislation.

In the event that a complaint is upheld a tribunal is entitled to make a declaration to that effect and to award such compensation as it considers “just and equitable”, having regard to “the employer’s behaviour” and any loss sustained by the employee (s80(3)(4) ERA 1996).  Currently, in discrimination cases the central focus is upon how the employee “feels” about the behaviour of the employer, this being reflected in an award for injury to feelings.  However, it may be that the case law which has developed in England and Wales concerning “aggravated damages” in discrimination cases will be useful when it comes to assessing the level of compensation to be awarded in the event of high handed/unacceptable behaviour by an employer.

Time off for dependants

The 1999 Act introduces a new right to “time off for dependants” (thereby implementing the provisions in the Parental Leave Directive which give a right to time off in family emergencies).  There were substantial amendments to the Bill during its passage in relation to this particular right.  Initially, it was proposed that the right should be to time off to deal with a “domestic incident” but this was regarded as too wide.  Lord Sainsbury, introducing the Bill in the House of Lords, said that “the provisions were never intended to allow employees time off to get their washing machines mended.”

New section 57A states that “An employee is entitled to be permitted by his employer [curiously framed - an entitlement to be permitted!  Presumably framed to build in a degree of control by the employer] to take a reasonable amount of time off in order to take action which is necessary:

a) to provide assistance on an occasion when a dependant falls ill, gives birth or is injured or assaulted,

b) to make arrangements for the provision of care for a dependant who is ill or injured, in consequence of the death of a dependant,

c) because of the unexpected disruption or termination of arrangements for the care of a dependant, or

d) to deal with an incident which involves a child of the employee and which occurs unexpectedly in a period during which an educational establishment which the child attends is responsible for him.”

The right is dependent upon the employee telling the employer as soon as reasonably practicable about the reason for the absence and how long he/she expects to be absent (unless the employee cannot comply with the duty to inform the employer of the absence until after they have actually returned to work.)

A dependant is defined as a:

• spouse
• child
• parent
• n a person who lives in the same house as the employee, (otherwise than as a lodger, boarder, tenant or employee).

For the purposes of (a) and (b) dependant will also include any person who reasonably relies on the employee for assistance on an occasion when the person falls ill or is injured or assaulted, or to make arrangements for the provision of care in the event of illness or injury.

For the purposes of (d) dependant includes any person who reasonably relies on the employee to make arrangements for the provision of care.

In discussing the extent of the right Lord Sainsbury stated:

“We intend the right to apply where a dependant becomes sick or has an accident, or is assaulted, including where the victim is distressed rather than physically injured.  It provides for reasonable time off, if an employee suffers a bereavement of a family member, to deal with the consequences of that bereavement, such as making funeral arrangements, as well as to take time off to attend the funeral.  Employees will be able to take time off in the event of the unexpected absence of the carer, where the person is a dependant of the employee.  So if the childminder or nurse does not turn up the employee will be able to sort things out without fearing reprisals at work.  Employees may have to take time off to attend to a problem arising at their children’s school or during school hours for example if the child has been involved in a fight, where the child is distressed, or if the child has committed a serious misdemeanour which could lead to expulsion.  Again, the provision will secure their right to do so”.

He also stated that “in all cases, the right will be limited to the amount of time which is reasonable in all the circumstances of a particular case.  For example, if a child falls ill with chickenpox the leave must be sufficient to enable the employee to cope with the crisis - to deal with the immediate care of the child and to make alternative longer term arrangements.  The right will not enable a mother to take a fortnight off while her child is in quarantine.”

S57B specifies that an employee may complain to an employment tribunal if his employer fails to permit him to take time off in accordance with s57A.  Such a complaint is to be made within three months of the failure or, if this was not reasonably practicable, within such further period as the tribunal considers reasonable.  Again, it is open to the tribunal to make a declaration and to award such compensation as the tribunal considers just and equitable, having regard to “the employer’s default in failing to permit time off and any loss sustained by the employee” (s57B(3)(4)).

Employers may, of course give employees paid time off to deal with emergencies of the type covered by these provisions - indeed, many of them already do.  However, employees will now have a degree of comfort that they are not relying upon a “favour” by their employer (which may be bestowed in one case but not in another) when it comes to coping with problems that can arise in combining work with family caring commitments.