DAVID ROYDEN - EMPLOYMENT SOLICITOR
UK EMPLOYMENT LAW

David Royden is a Partner with Laytons Solicitors and Head of Employment Law, Manchester, UK

Laytons Solicitors is a national law practice specialising in all aspects of Company and Commercial Law

Laytons Solicitors, 22 St John Street, Manchester M3 4EB.
Tel: +44 (0) 161 834 2100
Fax: +44 (0) 161 834 6862

Offices at London, Manchester and Guildford, UK

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PARENTAL LEAVE

The Employment Rights Act 1999 makes regulations entitling an employee who satisfies certain conditions to take parental leave “for the purpose of caring for the child”. There is no legal requirement on employers to keep records nor are employers required to pay employees on parental leave.

ENTITLEMENT

Whether male or female, if an employee has worked for an employer continuously for a year and has responsibility for a child, he or she is entitled to 13 weeks' parental leave for each of child born or adopted provided that he or she:.

  • is the parent (named on the birth certificate) of a child born on or after 15 December 1999 who is under five years old;
  • has adopted, on or after 15th December 1999, a child under the age of 18 (this right lasts for five years from the date on which the child is placed for adoption or until the child’s 18th birthday, whichever is the sooner);
  • has, under the Children Act 1989 or the Children (Scotland) Act 199, acquired formal parental responsibility for a child born on or after 15th December 1999 who is under five years old.

This leave is unpaid and must be taken by the time the child reaches the age of 5. If the child is adopted, then Parental Leave must be taken by the 5th anniversary of the adoption or when the child reaches the age of 18, whichever is the earlier.

If the employee works part-time, a week's Parental Leave will correspond with the number of days/hours which he or she normally works in a week. If he or she works irregular hours, a week for the purposes of Parental Leave will be the average number of hours worked per week in the preceding 52 weeks.

KEY ELEMENTS OF THE SCHEME

Key Elements of Parental Leave Scheme

The key elements of the parental leave scheme which cannot be excluded by a collective or workforce agreement are:

  • the amount of parental leave. This must be of at least 13 weeks for each child born on or after 15th December 1999 who is under the age of 5;
  • the employee’s right to remain employed during the parental leave period, but without pay. The employer will remain bound by his implied obligation of trust and confidence during parental leave;
  • the employee’s entitlement to return to his or her old job after parental leave or, if that is not possible, to a job which is both suitable and appropriate and which has the same (or better) status, terms and conditions as the old job;
  • the preservation of the employee’s seniority, pension rights and similar rights as they would have been if his or her employment prior to taking parental leave had been parental leave had been continuous with his or her employment following the return to work.

RIGHT TO RETURN

An employee is entitled after a continuous period of Parental Leave which is 4 weeks or less in length to return to the same job which he or she carried out prior to his or her absence.

Women who take Parental Leave of 4 weeks or less immediately after Additional Maternity Leave do not have an automatic right to return to exactly the same job if that is not reasonably practicable at the end of the Additional Maternity Leave and is still not practicable at the end of the Parental Leave. Instead, she is entitled to another job which is suitable and appropriate in all the circumstances. If Parental Leave of 4 weeks or less is taken immediately after Ordinary Maternity Leave then she is entitled to return to the same job.

If, by agreement, an employee takes more than 4 continuous weeks' Parental Leave, he or she is entitled to return to the same job unless it is not reasonably practicable to permit such return. In such a case he or she will be permitted to return to another job which is both suitable and appropriate in the circumstances.

RECORD KEEPING

An employee is entitled after one year's continuous service to a total of 13 weeks' Parental Leave for each child born or adopted on or after 15 December 1999 notwithstanding any change in his or her employer. This means that he or she does not accrue another 13 weeks' Parental Leave if he or she changes employer. When an employee has completed a year with a new employer, he or she will be entitled to take any remaining Parental Leave. An employee is not entitled to 13 weeks from each new employer.

An employer may request confirmation from an employee of the amount of Parental Leave which he or she has taken prior to or upon your joining the employer.

Employers will usually keep a record of the Parental Leave which an employee has taken and will usually pass on this information to any prospective employer on request. It is advised that employees also keep a record for their own purposes.

PARENTAL LEAVE SCHEME

Parental Leave must be taken in minimum blocks of one week. This means that if an employee takes any period of leave which is less than a week it will still count as one week out of his or her 13 week entitlement.

An employee may take a maximum of 4 weeks' Parental Leave in any year. A year for these purposes commences on the child's birthday.

ACTION

An employee must, when requested, provide proof of his or her entitlement to Parental Leave. This may include evidence of his or her responsibility for the child, the child’s date of birth or details of the adoption process. Failure to comply with this request could result in the loss of entitlement to Parental Leave.

A request to take Parental Leave must be made at least 21 days prior to the proposed period of leave.

If an employee does not give the requisite notice or the employer genuinely feels that the operation of the business would be unduly disrupted, the request for Parental Leave may be postponed. If so, the employee should be given notice in writing within 7 days of his or her request, advising of the reasons for the postponement and the date on which the Parental Leave may be taken instead. Any postponement may not exceed 6 months. If a postponement takes you past the child's 5th Birthday or 5th anniversary of adoption the employee will still be entitled to take the postponed leave as soon after the Birthday or anniversary as possible.

There are two exceptions to the requirement to give 21 days' notice of any Parental Leave and in both cases if the requirements have been complied with the Leave cannot be postponed.

1. If the employee is the father of a child and intends to take a period of Parental Leave when the child is born, he must, at least 21 days before the beginning of the Expected Week of Childbirth:-

a) give notice to his employer of the Expected Week of Childbirth; and
b) the duration of the leave.

2. Where the leave relates to a child that is being adopted and the leave is due to begin on the date of the adoption, the employee must, at least 21 days before the beginning of the week of the adoption, or if this is not practicable, as soon as is reasonably practicable:-

a) give notice to the employer of the expected week of the adoption; and
b) the duration of the leave.


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