The Joys of Parenting; Employment Rights

It’s September. The trees are just starting to go golden, pumpkin is back on the menu, and children are returning to school after six long weeks off to enjoy the sun and give their poor, beleaguered teachers a bit of a break from the “Miss, he keeps poking me!” and “She started it!” and “I’m not lying, I can’t do PE today, I really do have a stomach ache!” With the school year swinging back into force, we thought we’d take a look at the rights of parents in the workplace, including paternity and maternity.

In the interests of inclusivity for people with different gender identities and sexual orientations, this article will use phrases like “Pregnant parent” or “Primary parent” and “Supporting parent” instead of “mother” and “father” when discussing maternity and paternity leave, and will use gender-neutral pronouns.

We at HR and You are a diverse workforce, and we believe in respecting the lives and lived experiences of parents who don’t fit into the traditional mother/father dynamic. In this case, the primary/pregnant parent (regardless of sex or gender) will receive maternity, and the supporting parent (regardless of sex or gender) will receive paternity.

How long is maternity leave?

Any pregnant person or primary parent is entitled to 52 weeks of maternity leave, regardless of how long they’ve worked at a particular company.

You might see the phrases “ordinary” or “additional” leave in your contract or employee handbook, with a distinction made between the two. Prior to 2008, regulations made a distinction between the two because additional leave was subject to caveats like time served and less job protection. This is no longer true, but the phrasing remains in some regulations and statutes and in some employment contracts and handbooks.

For the purposes of this article, we will simply call this combined time “maternity leave”.

The right to maternity leave lasts, as previously stated, for a total of 52 weeks. This time is not counted as a break from the contract of employment – the primary parent is still entitled to all of their previous benefits, such as discounts, healthcare plans, company vehicles, professional subscriptions, and qualifying periods for other employment purposes such as seniority, pension plans and contractual pay increments.

Pregnant parents must begin their leave sometime after the eleventh week before their expected week of childbirth (EWC), but within reason, can choose to start whenever they like. There are three general caveats to be aware of – one, a pregnant person must notify their employer at least fifteen weeks from their EWC, two, most employers will expect some form of notice to be given for any changes to the chosen date, and three, if a pregnant person misses work within four weeks from their EWC because of their pregnancy, then their maternity leave begins automatically.

The first two weeks of leave are compulsory (and the first four for any person who works on a factory floor), to give the pregnant person chance to recover from childbirth, but as long as they provide at least eight weeks notice, they are free to return to work at any point after that.

When returning during the first half of maternity (previously referred to as “ordinary maternity leave”), as there has been no break of contract, the primary parent is entitled to their old job back. However, if they return during the second half of maternity (previously referred to as “additional maternity leave”), the employer can, within reason, move the primary parent to a new job that they are suited to if their previous role is no longer available.

How much maternity pay do you get?

To qualify for Statutory Maternity Pay, a primary parent must fulfil a certain set of requirements first.

1. Their earnings must have been at or above the lower earnings limit for National Insurance contributions;
2. They must have been employed by their employer for at least 26 weeks on the fourteenth week before their EWC;
3. They must have given your employer medical evidence of a pregnancy in the form of a MAT1 form;
4. They must have given your employer at least 28 days notice from the start of their maternity leave;
5. You must have reached the eleventh week before your EWC, or have recently given birth;
6. and finally, they must stop working.

If they don’t qualify for SMP, they may qualify for Maternity Allowance, a state benefit provided by the government. If they do qualify for SMP, then their entitlement is calculated like this;

1. For the first six weeks, SMP is set at 90% of the currently weekly pay; if the primary parent makes £200 a week, then SMP for them would be £180 a week.
2. Following that, they are moved onto a lower rate, set at £151.20 per week or 90% of their standard pay for the remainder of their maternity leave, whichever is lower.

This makes the average lower-rate maternity payout £654 a month – this is much lower than most people’s earnings, and one criticism of the maternity system is that this forces lower-income primary parents to return to work before they’re ready.

How long is paternity leave?

Depressingly, the right to paternity leave is far less well-established than maternity leave. Unlike the primary parent, the supporting parent is only entitled to two weeks of paid paternity leave – and that entitlement has only existed for less than 20 years, as it was a reform brought in by Tony Blair’s Labour government in 2002.

It also has attached to it stipulations and requirements maternity does not. Whilst the primary parent is entitled to maternity regardless of time served, supporting parents are only entitled to their leave if the following requirements are met;

1. They have been working at their current employer for 26 weeks at the 15th week before the EWC;
2. They must be either the child’s biological ‘father’, or the mother’s spouse, civil partner or partner;
3. And they must have or be expected to have responsibility for bringing up the child.

The leave can start on a fixed day, or a specific number of days after the child’s birth; unsurprisingly, the supporting parent is likely to choose the latter, given the EWC is not always a reliable indicator of when the primary parent will actually give birth. They then must take either one or two weeks leave as a single blog within 56 days of the birth of their child.

Many of the same laws about notice periods apply to paternity as to maternity, and so we won’t cover them a second time.

How much do you get paternity pay?

Paternity pay is much simpler than maternity pay, given how short the period of statutory paternity leave is. Paternity pay is set at the same rate as the lower rate of maternity pay, so at £151.20 or 90% of pay, whichever is lower.

What is the law on shared parental leave?

In 2010, it was recognised that the supporting partner should be able to take more time off to look after and bond with their child. This resulted in the development of additional paternity leave, which allowed the supporting parent to take up to 26 weeks to look after their child, so long as the primary parent has returned to work. This couldn’t be taken before the 20th week after the child’s birth and had to be taken before the child’s first birthday.

This was an imperfect solution, to put it lightly. The primary parent was still forced to be the child’s primary carer for 20 weeks, and moreover, it provided no overlap where both parents could bond with their child together.

In came shared parental leave. It works like this; after the primary parent has claimed as much leave as they want to take, the non-mandatory maternity leave could be converted into shared parental leave for the supporting parent to use. This leave could be taken at the same time, or in alternation, or however the parents and employers all see fit.

Shared parental leave is a complicated topic. Much like paternal leave, there is a qualifying period for supporting parents. It also carries with it the need for the primary parent to give a notice of curtailment of maternity, notice of entitlement and intention to take, and a period of leave notice; in practice, it’s probably simpler to give all three at once. For employers, it’s probably best to look to their HR professionals to sort out entitlements to leave and pay.

Aside from being complicated, shared parental leave has its own issues. Primary parents – usually mothers – still receive a legal right to look after their children for an extended period after birth that supporting partners – usually fathers – do not. Moreover, Shared Statutory Parental Pay is still far lower than most families need to live on, and so pressure continues for one or both of the parents to return to work – usually, the pressure falls on the lower earner to use the leave, which statistically, is the person who just gave birth.

Whilst sharing leave might, in theory, look like a redefinition of parental rights to remove some of the entrenched attitudes that mothers are caregivers, the regulation currently falls short of supporting a more equal worldview.

Is adoption leave the same as maternity?

Despite the process of adoption being different to the process of giving birth, most of the legal rights remain the same. The primary parent is entitled to take up to one year’s worth of maternity leave, whilst the supporting parent can take two weeks, or they can share the maternity entitlement so long as they’re eligible for it, and they have the same right to return to the job they left.

If you are becoming the primary or supporting parent of an adopted child, then you legally must notify your employer within seven days of being matched of when your adoption leave should start – or as soon as possible, if it wasn’t reasonably practical to do so. They then have 28 days to confirm, in writing, when your adoption leave will start and end.

Otherwise, assume that the maternity section of this article applies if you are the primary adopter, and the paternity section applies if you are the supporting adopter.

How much parental leave can I take?

Parents also have access to parental leave of up to 18 weeks per child to care for them, so long as they are their child’s caretaker and they are under the age of 18. This parental leave is contingent on the employee working for their employer for a year. They are in the same position as people taking maternity for the first four weeks of parental leave – their jobs are protected and they can benefit from all their benefits except pay.

The sticking point for most people is the fact that parental leave is completely unpaid and the protection of returning to the same job falls away after the first four weeks, to the more flexible ‘similar basis’ protection given to people on additional maternity leave, where positions can change. The result is that, in practice, most people will not take any parental leave in fear of the financial repercussions. Moreover, like regular annual leave, the employer can refuse the right to the leave if it’s inconvenient.

Finally, parents have a right to unpaid ’emergency time off for dependents’. Whilst this emergency time off is not just for children, it can be used for children. This emergency time off can be taken to care for a dependent who has been ill, injured, assaulted, has died, or when other caretaking arrangements like babysitting or schooling has fallen through.

In these cases, it is the responsibility of the employee to alert their employer as soon as reasonably possible, and ensure only a reasonable amount of time is taken off for their dependent – unless it’s a child bereavement, in which case, parents can take up to two weeks bereavement leave.

Conclusion

There are plenty statutory requirements that give parents the right to take time off for their children, but one major issue with most of them is the financial cost of taking that time. The standard rate of paternity, maternity and shared parental leave is only ~£150 a week. This is equivalent to working for a wage of £3.75 per hour, whilst a real living wage is £9.50 an hour. The sad fact of the matter is most people can’t afford to take the time to look after and bond with their newborns. Even worse is parental leave, which is supposed to be there to support parents, but offers absolutely no financial support at all.

It should be completely unsurprising, then, that uptake for paternity and shared parental leave is so low. Only 1% of parents took up the opportunity for shared parental leave, and only a quarter of eligible people taking paternity. Whilst the language in this article was designed specifically to avoid making assumptions about gender, we must point out that most people who are being driven back to work are men, whilst women are the ones mostly forced to take on the burden of childcare.

These policies still reflect deeply entrenched ideas about gender roles, and more should be done to correct that.

We hope that this article has been informative. If you’re a business owner who has questions about paternity, maternity, or parental leave, feel free to give us a call – we’d be happy to advise you. We also have a full range of policies, forms, and other documents you need in our toolkit and as part of one of our retained packages.

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Here to Help

HR and You’s handbooks and policies are fully in line with current legislation in regards to maternity and paternity leave – and should you want to craft a parental leave policy for your business, we would be more than happy to help you create one that is legally compliant with all the current legislation.

We are here to provide full advice, support, and guidance. We can advise in any HR or Employment Law matter: you can contact a member of our team on 0333 006 9489 or [email protected]