Family Friendly Employment Rights

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Parents and carers are entitled to special rights at work.  On this page we discuss the following in the context of employment rights:

• IVF
• Surrogacy
• Adoption
• Foster parents
• Shared parental leave and pay
• Unpaid parental leave
• Time off to care for dependants (emergency leave)
• Flexible Working
• Remedies
• Employment Fixed Fee Package

IVF

There is no statutory right to time off for IVF (in vitro fertilisation) treatment (unless it can be brought within the definition of antenatal care). However, once pregnant, a woman undergoing IVF treatment has the same rights as any other woman who is pregnant by natural means. If the IVF is unsuccessful, the protected period ends 2 weeks after the date the woman is informed that implantation was not successful.

The earliest date at which pregnancy begins is at the date of implantation. Therefore, where a woman is dismissed during her IVF treatment, but before implantation takes place, she is not considered pregnant at the date of dismissal and is not protected under the specific right not to be discriminated against because of pregnancy or maternity leave. The Employment Appeals Tribunal has clarified that this protection applies to the period:

• Between the retrieval of the eggs and their imminent transfer (i.e. implantation); and
• After implantation.

However, a worker undergoing IVF will be protected under the general right not to suffer sex discrimination throughout the period of treatment if the reason for the discrimination is because they are likely to become pregnant.

Questions

• I’m going through IVF. What are my employment rights?
• Can I take time off for IVF appointments?
• Am I protected from discrimination?
• Can I change my work pattern to accommodate IVF treatment?
• What if IVF is not successful?

Surrogacy

Parents receiving a child via surrogacy are entitled to unpaid time off for two antenatal appointments (up to a maximum of 6.5 hours during working hours on each occasion), a period of adoption and paternity leave (with the parents choosing which of them takes each right) and shared parental leave (should the main adopter wish to curtail their adoption leave early and convert the balance of their entitlement to shared parental leave). To be entitled the parents must apply, or intend to apply, for a parental order under section 54 of the Human Fertilisation and Embryology Act 2008.

Women whose babes are born via surrogates are not entitled to maternity leave although the surrogate will be entitled to take full statutory maternity leave and pay, regardless of whether or not she continues to have contact with the child following the birth.

Questions

• As a surrogate mother, can I take time off for antenatal care?
• Will I get statutory maternity leave and pay?
• As the partner of a surrogate, what are my rights?
• I am the intended parent in a surrogacy arrangement. What are my employment rights?
• Can I attend antenatal appointments?
• What leave am I entitled to after the birth?

Adoption

Prospective adopters who have been notified that an adoptive child is (or is expected) to be placed with them for adoption are entitled to time off the attend adoption appointments. The main adopter is entitled to paid time off to attend up to five adoption appointments. The co-adopter is entitled to unpaid time off to attend up to two adoption appointments. Since the main purpose of the appointments is to deal with adoption formalities and to allow the prospective adopters some contact with the child before the placement, the appointments must take place before the child is actually placed.

An employer must not unreasonably refuse time off to attend adoption appointments. An employee refused time off to attend an adoption appointment can lodge proceedings in an Employment Tribunal (within 3 months of the appointment) and if the complaint is successful the Employment Tribunal must order the employer to pay double the hourly rate of pay that the employee would have been entitled to for the time off in question.

If more than one child is adopted as part of the same arrangement there is no additional entitlement in respect of the second child. It can be quite common for an adoptive parent to adopt further siblings of the first adopted child at a later date. As long as this is done as part of a separate adoption arrangement, a new entitlement will arise on the subsequent adoption.

If a parent has exercised the right to paid time off to attend adoption appointments they cannot subsequently take paternity leave instead of adoption leave.

With regard to overseas adoptions, leave can start when the child arrives in the UK or within 28 days of this date. The employee must have official notification (permission from a UK authority) that they can adopt from abroad.

Employees who adopt privately (e.g. without permission from a UK authority or adoption agency) are not eligible for adoption leave.

There is no statutory entitlement for parents who adopt step-children by a court order

Questions:

• Am I entitled to take adoption leave?
• If I am not entitled to adoption leave, can I take paternity leave?
• How much adoption leave am I entitled to take?
• How much adoption pay will I receive?
• What rights do I have during my adoption leave and when I return to work?
• What about overseas adoptions? What are my rights?
• What about private adoptions? What are my rights?

Foster parents

Foster parents who are to adopt their foster child are entitled to time off for adoption appointments as long as standard adoption procedures of matching the child with them is followed by the local authority.

Foster parents who adopt are eligible for adoption leave as long as the child that they fostered is matched with them for adoption by a UK adoption agency. There is no statutory entitlement if adoption is by a court order.

The spouse, civil partner or partner of the foster parent may be entitled to statutory paternity leave. The shared parental leave scheme is also open to foster parents.

Questions

• As a foster parent, what are my rights at work?
• Can I request flexible working?

Shared parental leave and pay

Optional shared parental leave (SPL) is designed to give parents more flexibility in sharing the care of their child in the first year following birth or adoption. A mother/ main adopter can choose to end their maternity/ adoption leave early and exchange the remaining period of leave for shared parental leave and this shared parental leave can then be divided up between the parents. This divided shared parental leave can be taken at different times – or both at the same time.

Questions

• Am I entitled to apply for shared parental leave and pay?
• How do I apply for shared parental leave and pay?
• What are my rights during shared parental leave?
• What if my employer refuses my application?

Unpaid parental leave

Eligible employees have the right to take unpaid parental leave for the purpose of caring for a child for whom they are responsible. Parental leave applies to parents with children below the age of 18. If an employee does not qualify for parental leave, they may be entitled to take unpaid time off (i.e. dependant leave) although this is only designed for short (emergency) periods.

Parents with children under 18 have the right to take parental leave if they have completed 1 year’s continuous employment with their current employer. An employee has responsibility for a child if they have “parental responsibility”. This requirement covers mothers, fathers who are married to the mother at the time of birth, and those who have acquired responsibility as a result of a court order or a formal agreement with the mother, for example adoptive parents who take responsibility when the adoption order is made, and those who have been registered as the father on the birth certificate (this covers fathers unmarried to the mother at the time of birth).

As long as parents have parental responsibility they do not have to live with the child to be entitled to take leave. Conversely, step-parents or foster parents who have not formally obtained parental responsibility will not be entitled to take parental leave.

An employee is entitled to 18 weeks’ leave in respect of each child. This entitlement applies as a total. Therefore, if an employee has used 4 weeks’ parental leave with a previous employer, they will be entitled to 14 weeks’ leave with their current employer.

• Can I take time off work to care for my child?
• Will I get paid if I take parental leave?
• I have three children. How much parental leave can I take?

Time off to care for dependants (emergency leave)

An employee can take unpaid time off to take whatever action is necessary:-

• To provide assistance when a dependant falls ill (including mentally ill), gives birth or is injured or assaulted;
• To make arrangements for the care of a dependant who is ill or injured;
• When a dependant dies;
• Because of the unexpected disruption or termination of arrangements for the care of a dependant; or
• To deal with an incident involving the employee’s child that occurs unexpectedly during school.

A dependant includes a spouse, child, parent or person living in the same household as the employee other than those who are employed by the employee or their tenants, lodgers or boarders.

• How much time off work can I take to deal with an emergency?
• Can my employer make me take annual leave to deal with an unexpected situation?

Flexible Working

Many workers find that flexible working helps with family commitments, and reduces the time, costs and stress of commuting. Flexible working encompasses a wide range of arrangements, including annualised hours, career breaks, compressed hours, flexitime, home/ remote working, job sharing, catching hours/ days to school hours, shift working, staggered hours, sabbaticals, term-time working, voluntary reduced hours, zero hours contracts.

All employees who have 26 weeks’ service have a statutory right to request to work flexibly. However, this does not give an employee an absolute right to work flexibly. Therefore, if an employer refuses an application, an Employment Tribunal cannot force an employer to accept the flexible working practice. The right is for reasonable consideration of the flexible working request.

An employee can only make one statutory request in any 12 month period. If the request is accepted, it will constitute a permanent change to the employee’s terms and conditions of employment (unless otherwise agreed).

While there is no absolute right to work flexibly, a refusal of a flexible working request could potentially be discriminatory. An employee can also bring a complaint to an Employment Tribunal if their employer does not reasonably consider the request. While an Employment Tribunal has no power to order the employer to comply with a request, it can order the employer to reconsider the request and/ or pay the employee compensation (up to a limit of 8 weeks’ pay, subject to a statutory cap). Employees also have the right not to be dismissed for exercising their right to request flexible working and have the right not to suffer any detriment (short of dismissal) for doing so.

Questions

• Am I entitled to apply for flexible working?
• How do I apply?
• What changes can I request?
• Is my employer obliged to grant my flexible working request?
• What can I do if my employer rejects my application?

Remedies

Employees have a right not to suffer a detriment, be unfairly dismissed or be less favourably treated as a consequence of exercising their rights to time off, leave and statutory pay. They also have additional specific remedies that will apply to each of these rights.

We can provide advice in relation to taking steps to resolve matters internally for example via a grievance or internal appeals procedure where one exists, and externally, for example by mediation, conciliation or through raising proceedings in an Employment Tribunal.

Dismissing an employee because they are pregnant (or, for a reason connected with pregnancy or childbirth), or because they are on maternity, adoption, paternity, shared parental or unpaid parental leave, or have exercised their right to time off to attend antenatal or adoption appointments is automatically unfair. Employees on leave also have a right to return to work and failure to allow an employee to return will amount to unfair dismissal unless the employer can justify its actions.

An employee has the right not to be subjected to any detriment (short of dismissal) by an act or deliberate failure to act because of:-

• A reason connected with pregnancy or childbirth
• Taking time off to attend an antenatal appointment
• Taking time off to attend an adoption appointment
• Taking maternity/ adoption/ paternity/ shared parental leave or unpaid leave
• Time off to care for dependants
• Being a companion for a colleague at their meeting to request flexible working
• Undertaking, considering undertaking or not undertaking work during statutory maternity, adoption or shared parental leave
• Undertaking, or refusing to undertake, work on a KIT or SPLIT day.

Employment Fixed Fee Package

We understand that you need clarity with regard to costs therefore our fees are discussed at the outset and can be flexible to your personal circumstances.

We can offer an Initial Consultation Fixed Fee Package to employees. This is a fixed fee initial exploratory meeting with one of our team of dedicated employment law solicitors who will discuss the issues and options with you and then provide you with a short note afterwards summarising the issues and options.

What’s next?
Contact us to discuss further or to make an appointment:
Email: familylaw@bto.co.uk / Call 0131 222 2959 or 0141 225 4848

What should you bring to the meeting?
For required identification purposes: your passport and a current bank statement or utility bill showing your current address OR your photographic driving licence. If you are enquiring as a couple then we will require identification for both of you.

When do you pay?
You will be asked at the start the meeting, to pay the fixed fee by debit card, credit card or cash. There is no charge for debit cards however please note there will be a charge of 2% on credit card transactions.

What if I require ongoing assistance?
If you wish us to do further work for you after the initial consultation meeting, we will issue terms of business setting out our feeing arrangement, agree with you the basis of payment and when these sums are to be paid. In some cases, a payment to account of fees may be requested upfront.

Why choose BTO?

• The employment law team offers:
• Accredited specialists in Employment Law
• Highly rated team experienced in all aspects of employment law
• Experience in Employment Tribunals and Employment Appeal Tribunals
• Cross border experience

If you have any further queries in connection with our initial consultation fixed fee package, call us on 0131 222 2959 or 0141 225 4848.

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