The rights of parents and carers in relation to time off have always been a point of contention within the United Kingdom. Whilst an emergency right to time off for dependants exists, there is often a gap between the conduct that could potentially be interpreted as reasonable management by an employer, and what they are legally obliged to undertake. Recent legislation is seeking to introduce new rights to be introduced for employees who are parents and/or carers and wish to take time off work over the next few years. These provisions are not yet in place, but it is hoped will become effective in due course.
The Neonatal Care (Leave and Pay) Act
This offers 12 weeks of paid neonatal care for parents whose children are admitted into neonatal care. This is in addition to other leave and pay entitlements under the existing maternity and paternity legislation. Neonatal care is defined by the act as care:
- of a medical or palliative kind specified in the regulations, and
- that starts before the end of a period of 28 days beginning with the day after the date of the child’s birth.
Other leave and pay entitlements under existing maternity and paternity legislation include the right to paid time off for antenatal care that women can take on maternity leave and the mother’s partner getting unpaid time off for up to two antenatal appointments and the addition of a right to time off during periods of neonatal care would, if implemented, represents a strong assistive right for those whose children go through complicated or difficult births.
The Protection from Redundancy (Pregnancy and Family Leave) Act
This extends redundancy protection for pregnant women and new parents to cover pregnancy and a period of time after the new parent returns to work. This extension is on top of the existing redundancy protections under maternity, adoption and shared parental leave.
The existing redundancy protections that apply during maternity leave include an employer being obligated to offer the ‘at risk of redundancy’ employee a suitable alternative vacancy should the same exist either with the employer, the employer’s successor or any associated employer. This right exists during the employee’s ordinary or additional maternity leave. This is the first 26 weeks after the employee gives birth and then up to 52 weeks from the date maternity leave commenced. This right is mirrored for adoption leave too i.e. the same right of suitable alternative employment during ordinary (first 26 weeks) and additional adoption leave (further 26 weeks). For shared parental leave, the offer of suitable alternative employment must be offered during any period the parent is taking shared parental leave.
Therefore, it may well be this new Act will provide this right for a longer period of time as well as expanding cover to include those returning from Shared Parental leave and those returning following a miscarriage, however the extent of protection offered is still yet to be substantively confirmed and will be implemented by way of regulations.
The Carer’s Leave Act
This is a prospective new entitlement for unpaid carers to allow them to take a week of flexible unpaid leave a year to provide or arrange care for a dependant with a long-term care need. A long term care need is defined as an illness or injury which requires or is likely to require care for more than three months, have a disability for the purposes of the Equality Act 2010 or they require care for a reason connected to their old age.
There was previously only a right to take reasonable unpaid time off work in order for carers to deal with unexpected emergencies affecting their dependants and to make necessary long-term arrangements. Therefore, this new right is important in just allowing carers to take a week off for caring needs, rather than just emergencies.
Further details about the scope to utilise this leave will follow in the form of secondary legislation.
Potential Claims
Whilst there are limited details about the potential claims that could arise and be taken to the Employment Tribunal, it is likely, mirroring the other family-friendly legislation, there could be a potential to claim:
- Suffering a detriment due to exercising, or seeking to exercise, your rights to take the above leave and;
- Automatic unfair dismissal for exercising, or seeking to exercise your rights under the above leave.
Lyons Davidson Solicitors offer various online templates regarding seeking to exercise rights under maternity and paternity leave. You can access these by following this link: Log On – LD Online Documents – Lyons Davidson Solicitors Online
