Are you an SME business owner or HR practitioner feeling overwhelmed by the complexities of family leave entitlements? Managing family leave can feel daunting and we often face challenges in interpreting this complex area of law.
With 2024 being a big year for employment law, especially with family leave entitlements, in this month’s Hot Topic, we equip you with the knowledge and practical guidance that is needed to manage family leave whilst staying compliant with the law.
In this article we explore the various forms of family leave, common challenges faced by SMEs, and offer practical solutions to simplify the process. We also look at:
- Developments in the law
- How to prevent discrimination connected with family leave
- Examine common practical questions that arise when managing family leave
- Consider what is best – having individual family leave policies or one consolidated policy?
- Understanding your obligations once an employee has gone on a period of family leave and upon their return
- The need for clear and detailed documents and record keeping.
Types of statutory family leave
Here’s a breakdown of the various statutory family leave entitlements:
- Adoption leave: Adoption leave allows employees to take up to 52 weeks’ leave, with 39 weeks statutory adoption pay (SAP) when eligible.
- Carers leave: This new statutory entitlement allows employees unpaid time off to provide or arrange care for a dependant with a long-term care need.
- Maternity leave: Like adoption leave, employees are entitled to up to 52 weeks’ leave, with 39 weeks statutory maternity pay (SMP) at varying rates, when eligible.
- Parental leave: Employees with a child under 18 can take up to 18 weeks unpaid leave.
- Parental bereavement leave: Provides a period of up to two weeks leave of bereavement leave when a child under the age of 18 passes away with statutory parental bereavement pay (SPBP) when eligible.
- Paternity leave: Fathers or partners can take up to two weeks’ leave after the birth or adoption, with statutory paternity pay (SPP) when eligible.
- Shared parental leave: Allows eligible parents to share up to 52 weeks’ leave and pay after the birth or adoption.
- Time off for dependants’: Employees have the right to a reasonable amount of unpaid time off to care for a dependant in need of care due to illness, injury, or because of a disability.
Developments in the law
Already this year, we have developments in this area of employment law. We have the introduction of a new carer’s leave, changes to the statutory rules for managing paternity leave and, greater protections are being introduced for those who are made redundant whilst on a period of family leave.
However, there are further areas of development ahead. The Neonatal Care Leave and Pay Act 2023 received Royal Assent back in May 2023, although we don’t expect it to commence until sometime in 2025.
We shall also see the introduction of the Workers (Predictable Terms and Conditions) Act 2023 and changes to current flexible working laws. Whilst these aren’t forms of family leave, many working parents and carers tend to have flexible working arrangements.
There are also several Employment Bills going through the parliamentary process, so they may not materialise, but if they do, we’ll see new entitlements in the areas of fertility treatment and time off work following a miscarriage.
Practical solutions
In this section we consider the legal framework for managing family friendly entitlements. We break this up into 7 key areas; health and safety, record keeping, communication, pay, starting a period of and returning from family leave and preventing discrimination.
Health and safety
What are our legal obligations for the health and safety of a pregnant worker?
All employers have a legal duty to assess workplace risks and to change working conditions or the hours of work of a pregnant/new mother to avoid any significant risk. Failure to do so could lead to unlawful pregnancy/maternity discrimination. Useful case ruling is in the case of Queen Victoria Seamen’s Rest Ltd (QVSR) v Ward UKEAT/046508.
What does this mean in practice?
- Complete a risk assessment as soon as you are aware of the pregnancy and review it throughout the pregnancy. It is vital that it remains under constant review because as the pregnancy progresses, there could be a change to or new workplace risks that arise.
- Implement reasonable adjustments to accommodate their needs. Reasonable adjustments could be made to the job, hours of work, location, equipment used to do their job, or the working environment.
- Seek medical advice from medical professionals where there may be health issues that are impacting on work or where work may be having an impact.
- Your employee will need to take time out of the workplace to attend antenatal appointments, as part of the medical care they receive from their midwife. Time out must be paid and any refusal to allow the time off and any detriment they are subjected to will amount to a detriment under the Employment Rights Act 1996 and could also lead to unlawful discrimination under the Equality Act.
- Some employees may require additional medical care, either to support an existing medical condition during their pregnancy, or their pregnancy may bring new health issues that need to be kept under review by a medical practitioner.
- There may be a need to medically suspend where all reasonable adjustments have been exhausted yet there remains significant risk to the health and wellbeing of the employee and/or their unborn child.
Contractual arrangements
How do we manage the employment contract during a period of family leave?
Adoption/Maternity leave is split into two parts: ordinary adoption/maternity leave, known as ‘A/OML’ (the first 26 weeks) and additional adoption maternity leave, known as ‘AA/ML’ (the second 26 weeks). The contract of employment continues throughout both ordinary and additional adoption/maternity leave.
When on this leave (both ordinary and additional leave), the employee continues to benefit from all of the terms and conditions that would have applied had they been at work, except for remuneration, which is defined as “wages or salary” only. This includes benefits such as holiday accrual, company cars and insurance schemes. The employee is bound by the implied obligation of good faith and any express terms and conditions relating to:
- notice provisions by the employee
- the disclosure of confidential information
- acceptance of gifts or other benefits
- the employee’s participation in any other business.
Remuneration (defined as sums payable by way of “wages or salary”) does not continue; instead, the employee receives statutory pay (if entitled to this). There is some debate as to whether allowances which are paid through the payroll, such as car allowances, housing allowances or fuel allowances, count as remuneration or not. HMRC considers they do, even though such allowances may be paid as a contractual alternative to a non-cash benefit such as a company car or living accommodation, so it would seem that these cash allowances should not be payable as a benefit during the leave period.
An employee returning to work after ordinary leave has the right to return to the same job. The right to return following additional leave is to the same job unless this is not reasonably practicable, but any alternative job must be both suitable and appropriate. The right to return is on terms no less favourable than those which would have applied had the employee not been absent on adoption/maternity leave.
What does this area of law mean in practice?
This can be a complex area of employment law, not only do employers need to manage the leave in line with the Maternity and Parental Leave Regulations 1999 but also contract law. We would suggest:
- We advise making all your policies non contractual to minimise the risk of breach of contract claims.
- Where you offer benefits such bonus schemes, performance related pay etc, ensure that you have clear and non-ambiguous written rules.
- Seek employment advice if you are unsure on a contractual matter.
Communication
The phrase “out of sight, out of mind” is unfortunately one which can easily be felt by employees who take time out of their careers to raise a family. Whilst when it does happen, it is often unintentional on the part of the employer; nevertheless, there can be moral and legal implications from failing to reasonably keep in touch.
The law was changed around 2007 to address concerns that the current laws did not do enough to encourage effective communication between both parties when on a period of family leave (adoption, maternity).
What is the law on communicating with employees who are on a period of family leave?
Alongside the ‘keeping in touch days’ that were introduced a few years back, the Maternity and Parental Leave Regulations 1999 (MPL) also allow employers to make “reasonable contact” from time to time during adoption and maternity leave.
What does this area of law mean in practice?
Firstly, the level of communication will be dependant upon the business, and attitude of the employee, but it could be for to discuss the employee’s return to work or to keep them informed on important business developments.
Secondly, and the most important consideration is to seek the employee’s views before they start their leave what they would be contacted on, how and how much.
Our practical tips:
- Ask them how would they like to be contacted – telephone? email, post? Keep a record of what you both agree
- Check with them about being included on distribution lists for workplace news, bulletins, vacancies, information about social events as well as training courses
- Let them know that there is no pressure to get involved in any social activities, training, or to take any action on the back of the updates.
- Keep them informed of any promotion opportunities or vacancies.
The legal risks of failing to make reasonable contact during a period of family leave, as well as failing to inform them of promotional opportunities, could amount to discrimination under the Equality Act.
Notification
What are the administrative obligations when employees take time off for family leave reasons?
When an employee is due to take a period of family leave there are certain legal requirements in regard to notification:
| Employee notification | Employer’s acknowledgement | |
| Adoption leave | No later than 7 days after the date in which they have been informed by the adoption agency that they have been matched for adoption. | Within 28 days from receiving notice of an employee’s intention to take adoption leave, the employer must confirm in writing the date on which the adoption leave will end. |
| Carers leave | Twice as many days, as the number of days requested. Or 3 days if the leave is longer. | Inform the employee within 7 days of their request whether it is authorised or requires postponement (alternative dates proposed must be no later than one month after the start of the original request that has been made). |
| Maternity leave | No later than the end of the 15th week before the expected week of childbirth | Within 28 days from receiving notice of the date the employee wishes to start their maternity leave, the employer must confirm in writing the date on which the maternity leave will end. |
| Parental leave | At least 21 days’ notice of their intention to take parental leave | |
| Parental bereavement leave | Employees are not required to give notice immediately following the child’s death but must give at last one weeks’ notice after the initial period and not immediately following the child’s death. | |
| Paternity leave | Notification of entitlement to paternity leave provided before the 15th week before the EWC (in the case of a birth).
No more than 7 days after the date on which the employee is notified of their match with a child for adoption.
Then at least 28 days’ notice before the dates upon which they intend to take each period of paternity leave |
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| Shared parental leave | For adoption:
At least 8 weeks before they wish to bring their adoption leave to end and at least 2 weeks after the first day of the adoption leave period, and at least one week before the last day of adoption leave. For birth:
Notice of entitlement and intention to take SPL must be given no less than 8 weeks before the start date chosen for the first period of SPL.
Notice for a period of leave must be no less than 8 weeks before the start date requested.
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| Time off for dependants’ | The right to time off is either in response to an unexpected or sudden event affecting a dependant, or to make necessary longer-term arrangements for the care of a dependant. If the problem was reasonably foreseeable, the employee will probably not be entitled to time off work under this legislation, but there will be other ways in which time off may be taken. |
What does this mean in practice?
- Introduce a workflow that sets out the entire process for all the various forms of leave to ensure you don’t forget to send required written confirmations.
- Use our various checklists to help you keep on top of the administration of managing family leave.
FURTHER INFORMATION
Our webinar to support this Hot Topic is taking place Thursday 11 April at 10am, you can register for this free event here.
If you would like to download our Family Leave Policy, you can do so here.
WE’RE HERE TO HELP
If you need help navigating family leave in your workplace, our expert team can help. Contact us on 0844 324 5840 or get in touch with us here.
