Article courtesy of Weightmans LLP
From 1 October 2014, an expectant father or the partner of a pregnant woman will be entitled to take time off work to accompany the woman to antenatal appointments. The Government’s stated aim is to achieve greater involvement of both of the child’s parents from the earliest stages of pregnancy.
There is no qualifying period for employees. This is a ‘day one’ right.
The entitlement is to unpaid leave to attend up to 2 appointments with the maximum time capped at 6.5 hours each.
An employer is not allowed to ask for ‘evidence’ of an appointment, such as a hospital appointment card, as this is the property of the expectant mother attending the appointment. However, an employer is entitled to ask that for a written ‘declaration’ stating the date and time of the appointment and the nature of the relationship between the individual and the expectant mother or child. The employee can also be asked to confirm that the appointment has been made on the recommendation of a medical professional (such as a doctor, midwife or nurse).
Any employee who has a ‘qualifying relationship’ with a pregnant woman or her expected child will be entitled to time off.
An employee will qualify if he or she is the woman’s husband or civil partner, lives with the woman in an ‘enduring family relationship’ or is the expected child’s father. Relatives of the pregnant woman will not qualify. Special rules apply to individuals involved in surrogacy arrangements.
Agency workers have the same rights as employees to time off, as long as they satisfy certain criteria. Essentially, the agency worker must have worked for 12 weeks for the same hirer with no breaks between or during assignments.
It is important to note that the new legislation creates a right to ‘accompany’ the pregnant woman, not a right to actually attend the appointment. The pregnant woman may always decline to be accompanied.
What remedies are available?
An employee who is unreasonably denied time off can complain to an Employment Tribunal within a three month period. If the Tribunal upholds the complaint it must make a declaration and award twice the hourly rate of pay for each of the hours the employee would have taken off if the right had been respected.
Employees are also protected from any other detriment for seeking to exercise their right to time off. For example, it would be unlawful to deny an employee a promotion or training opportunity simply because he or she had sought to take time off.
What does this mean for me?
The Government has recently published guidance to help employer’s get to grips with the new right that can be viewed in full herehttps://www.gov.uk/government/uploads/system/uploads/attachment_data/file/351413/bis-14-1063-timeoff-to-accompany-a-pregnant-woman-to-ante-natal-appointments-employer-guide.pdf .
You might wish to consider putting a workplace policy in place to cover this new right or, alternatively, amending an existing policy on parental leave.
The rights set out in the new legislation represent the statutory minimum. Employers are free to be more generous if they wish. For example, an employer could choose to offer paid leave as a ‘perk’.
It is also open to the employer to dispense with the need for an employee ‘declaration’ although a simple e-mail to HR or a line-manager requesting the time off will probably satisfy the requirements in any event.
A Tribunal will only award compensation if time off is ‘unreasonably refused’. It is therefore implicit that time off may be refused if it is reasonable to do so. There is no guidance in the legislation as to when it might be reasonable to refuse time off. However, the amount of notice given and the ability of the employer to organise cover might be potentially be taken into account. Given that the right is fairly limited however, it is likely that the Tribunal will expect employers to do their very best to accommodate requests.
6.5 hours seems to be a very generous allowance, even taking into account travel and waiting time, given that most medical appointments generally last no longer than an hour. The recent BIS guidance explains that this period represents half a day, where the maximum 13 hour working day under the Working Time Regulations is taken as a starting point. In reality, employees are unlikely to need this long to attend the appointment. However, some may seek to take the maximum in any event.
It is not clear whether a Tribunal would carry out an assessment of how long the employee would actually have been away from the workplace, or whether the maximum 6.5 hour period will be used to calculate compensation.
Even though an employee may complain to an employment tribunal if denied time off, it is highly unlikely that many would make a claim solely on this basis. The issue fee payable in the employment tribunal will most likely exceed the compensation available. However, an employee might bring a claim under the new rules alongside a claim of unfair dismissal or discrimination.
Given that employees must now contact ACAS before bring a claim you may be able to ‘catch’ any cases that ‘slip through the net’ before a claim is issued.
This update does not attempt to provide a full analysis of those matters with which it deals and is provided for general information purposes only and is not intended to constitute legal advice and should not be treated as a substitute for legal advice. Weightmans accepts no responsibility for any loss that may arise from reliance on the information in this update. The copyright in this update is owned by Weightmans LLP.