Supporting employees taking family leave

Changes in the rules for taking leave from work could affect many UK businesses.

Here, Senior Employment Law and HR Consultant, Louise Cossar, gives her insights into some common types of leave and the changes employers should be aware of.

Protections for UK employees requesting time off work after childbirth, or to care for a dependant, are changing – so it’s important that businesses understand the different types of leave that can be requested and some of the new rules.

Protections have been in place for many years, with the current legislation being the Employment Rights Act 1996. Over time, legislation has become more stringent for employers, but many employees need support at certain times in their working lives so it’s good practice to have positive conversations at an early stage.

"It’s important to maintain awareness of employees’ rights, as failure to do so can be damaging and costly."

Louise Cossar
Senior Employment Law and HR Consultant, Royal Bank Mentor

The rules around employees’ rights are often complex, so maintaining a cautious attitude is key, and it’s always a good idea to take legal and HR advice to ensure you are acting within the law and best practice.

In an uncertain economy, one topic to focus on is the significant changes to redundancy legislation under the Protection from Redundancy (Pregnancy and Family Leave) Act 2023.

The process for employees on family leave is like those for other employees. Care must be taken to ensure that they aren’t excluded from consultation, and that they are not selected for redundancy on the grounds that they are pregnant or taking family leave.

If an employee on family leave is selected for redundancy and there is a suitable alternative vacancy, the employer must offer the post to them. Failure to do so would mean that the employee may be able to make a claim for automatic unfair dismissal and potentially discrimination.

Regulations have been published which will extend the right to be offered a suitable alternative vacancy to an employee who is selected for redundancy:

Pregnancy

Additional protection starts from the point at which an employee tells their employer about their pregnancy (if that is on or after 6 April 2024). If the pregnancy ends and they are not entitled to statutory maternity leave, the protected period ends two weeks after the end of pregnancy.

Maternity leave

For maternity leave which ends on or after 6 April 2024, the additional protected period ends 18 months after the date of the child's birth.

Adoption leave

For adoption leave which ends on or after 6 April 2024, the additional protected period ends 18 months after the child's placement or the date they enter Great Britain (in the case of overseas adoptions).

Shared parental leave

For those taking six or more consecutive weeks of shared parental leave (SPL) on or after 6 April 2024, and who have not taken maternity or adoption leave, the additional protected period ends 18 months after the date of the child's birth or placement, or date they enter Great Britain.

Focus on employee rights

Many businesses are currently going through a period of challenging costs and uncertainty. But even during such periods, it’s important to maintain awareness of employees’ rights, as failure to do so can be damaging and costly to a business. Understanding the basics and always acting in a non-discriminatory manner is essential.

Employees have statutory rights and no matter how inconvenient to the business, if an employer were to treat them differently because they’ve requested or are taking leave, they could potentially make a claim to the employment tribunal.

It can be very stressful and disruptive to businesses and these claims, if proven, can be expensive for the employer – with maternity and pregnancy discrimination having the potential to attract significant compensation.

It’s a good idea to be familiar with the types of leave you could expect to encounter as an employer and the rules around each. Here are some of the main types:

Paternity leave

Currently, eligible employees can choose to take either one or two working weeks off after childbirth, which must be taken in one go. Leave cannot start before the birth and must end within 56 days of the birth (or due date if the baby is early).

For babies born on or after 6 April 2024 the two weeks can be taken in separate one-week blocks or one two-week block and can be taken any time in the first year from the date of the birth. The rules are different if you adopt.

Shared parental leave

Eligible employees and their partners may be able to get shared parental leave (SPL) and statutory shared parental pay (ShPP) if they are having a baby, using a surrogate to have a baby, adopting or fostering a child they’re planning to adopt. They can share up to 50 weeks of leave and up to 37 weeks of pay between both partners and the pay and leave must be shared in the first year after the child is born or placed with the family.

The leave can be used in blocks or taken all in one go, and the partners can choose to be off work together or stagger the leave and pay. There are different eligibility criteria for birth parents, adoptive parents or parents using a surrogate.

It's worth noting that statutory maternity pay is rising to £184.03 per week in April 2024.

This is the most complex of family leaves. It allows couples to share the child-caring responsibilities after birth, while retaining an income during that period.

Unpaid parental leave

After one year’s service, eligible employees can take unpaid parental leave to look after their child’s welfare. The entitlement is 18 weeks’ leave for each child and adopted child, up to their 18th birthday. Each eligible parent can take four weeks for each child per year unless the employer agrees otherwise. The leave doesn’t have to be taken all at once. In theory, an employee can request this time off at any time up until the child’s 18th birthday.

Dependant’s leave

An employee is allowed time off to deal with an emergency involving a dependant. The dependant could be a spouse, partner, child, grandchild, parent, or someone who depends on them for care. The employee is allowed a reasonable amount of time off to deal with the emergency, but there’s no set amount of time as it depends on the situation.

There’s no limit to the number of requests employees can make for this type of leave. Some employers may continue to pay the employee but there’s no legal obligation to do so. Sometimes this is covered by a company’s compassionate leave policy.

Carer’s leave

Employees will have a statutory right to take unpaid leave from work to provide or arrange care for their dependants with long-term care needs from 6 April 2024.

If employees meet the qualifying conditions, they are entitled to one week's unpaid leave to provide or arrange care in each rolling 12-month period. This is irrespective of how many dependants they have that meet the criteria. The leave may be taken in either individual days or half days, up to a block of one week.

An employee who is penalised for exercising the right to take carer’s leave, including disciplinary action and dismissal, could potentially make claims to an employment tribunal.

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