Employment Knowhow: Family friendly leave

There are various types of ‘family friendly’ leave, of which maternity and paternity are the most common. Family friendly leave is governed by prescriptive statutory rules regarding who is entitled to take such leave, when and how it may be taken and how it should be paid. 

Employers may, and often do, provide for maternity, paternity, adoption and/or shared parental pay in excess of the statutory minimum, in which case the relevant rules and provisions should be set out in a policy.

Maternity leave

All employees who are expecting a baby are entitled to a total of 52 weeks’ maternity leave, consisting of 26 weeks’ ordinary maternity leave and 26 weeks’ additional maternity leave, subject to certain notification requirements. Employees must take at least two weeks’ maternity leave starting with the day on which their child is born, and an employer who allows an employee to work during that period will be guilty of a criminal offence.

Maternity pay

Employees will be entitled to Statutory Maternity Pay (“SMP”) if they have sufficient continuous employment and sufficient earnings, and comply with certain notification requirements. Employees who qualify for SMP will be entitled to 39 weeks’ SMP at the prescribed rates. The first six weeks of maternity leave are paid at the rate of 90% of the employee’s average weekly earnings, and the remaining 33 weeks are paid at the lower of the prescribed rate set annually by the government or 90% of the employee’s normal weekly earnings.

Women who do not qualify for SMP may be entitled to Maternity Allowance for up to 39 weeks, subject to eligibility requirements.

Other rights during maternity leave

A number of other rights exist during an employee’s pregnancy and maternity leave, including the right to time off for antenatal appointments, the right to return to the same job following a period of maternity leave, priority for alternative employment in redundancy cases, and protection from dismissal, detriment or discrimination by reason of pregnancy or maternity.

Paternity leave

Eligible employees are entitled to take either one complete week or two consecutive weeks’ paternity leave within 56 days of a child’s birth. The purpose of paternity leave is to enable an employee to care for the child, or to support the child’s mother.

In order to qualify for paternity leave, the individual must be an employee with sufficient service with their employer; must have one of the specified relationships with the child or the child’s mother; must have responsibility for the child’s upbringing; and must not have already taken shared parental leave in respect of the same child (please see below). The employee must also give the employer the required notice and (where requested) the necessary evidence of entitlement.

Eligible employees may also be able to take paternity leave when adopting a child.

Paternity pay

Eligible employees will be entitled to receive statutory paternity pay (“SPP”) if they satisfy certain conditions regarding their relationship with the child and the child’s mother; have sufficient continuous employment and sufficient earnings; and comply with certain notification requirements. SPP is paid for up to two weeks at the lower of the prescribed rate set annually by the government, or 90% of the employee’s normal weekly earnings.

Adoption leave and pay

An eligible adopter will, subject to certain notification requirements, be entitled to up to 52 weeks’ statutory adoption leave and up to 39 weeks’ statutory adoption pay. They will also have other rights, such as the right to return to the same job (or, in certain circumstances, to a suitable alternative job) and protection from detriment or dismissal relating to adoption leave.

An adopter’s partner or spouse may be entitled to paternity leave and pay (please see above).

Shared parental leave and pay

Shared parental leave, introduced in 2015, allows eligible parents to share up to 50 weeks’ of leave and 37 weeks’ of shared parental pay on the birth of a child or placement of a child for adoption. The scheme is intended to increase flexibility in terms of childcare in the first year of a child’s life, but there are very detailed and prescriptive eligibility and notification requirements.

Parental leave

Parental leave is unpaid leave available to eligible parents for the purpose of caring for a child. Each parent is entitled to take up to 18 weeks’ leave per child up until their child’s 18th birthday, with no more than four weeks’ leave being taken in respect of a particular child in any one year. Leave must be taken in blocks of one week unless agreed otherwise, or unless the child is disabled, where it may be taken a day at a time.

This page was updated on the 30th July 2018

This information is necessarily of a general nature and doesn’t constitute legal advice. This is not a substitute for formal legal advice, given in the context of full information under an engagement with Bates Wells.

All content on this page is correct as of March 7, 2018.