At present a pregnant employee/agency worker has the statutory right to paid time off during working hours to attend antenatal appointments. This right applies to employees regardless of the length of service or number of hours worked, whereas Agency Workers must have completed a 12 week qualifying service period with the organisation. The employee should provide her employer with as much notice as possible and provide evidence of the appointment if requested by the employer.
However, at the moment, the father or partner of the pregnant employee has no legal right to accompany their partner to antenatal appointments, forcing them to use up holiday if they want to attend.
New right from 1 October 2014
Under the new Children and Families Act 2014, any employee or agency worker with a "qualifying relationship" to a pregnant woman or her expected child will be entitled to time off during working hours to accompany the woman to two antenatal appointments, taking up to a maximum of 6.5 hours off work for each appointment. This right, which comes into force on 1 October 2014, only provides the accompanying spouse/partner with the right to unpaid time off, so any payment made by the employer will be discretionary or as a result of a contractual obligation. Employees qualify for the right from day one; however, agency workers will only qualify once they have completed a 12 week qualifying period and as long as they have not taken on a different role with their hirer during that period and there have been no breaks between assignments, or during an assignment. Any employee/agency worker who suffers a detriment or dismissal as a result of exercising their rights may bring a claim for Automatic Unfair Dismissal.
What is a "qualifying relationship"?
The employee/agency worker has a "qualifying relationship" to the woman or her child if:
- They are the pregnant woman's husband or civil partner.
- They live with the woman in an enduring family relationship and are not a relative of the woman (parents, grandparents, siblings etc.).
- They are the expected child's father.
- They are one of a same sex couple who is to be treated as the child's other parent where the child was conceived by sperm donation.
- They are the potential applicant for a parental order in relation to a child expected to be born to a surrogate mother.
Making the request
The employer has the right to request proof of their employee's qualifying relationship to the pregnant woman or expected child, evidence that the purpose of the time off is to attend an antenatal appointment made on the advice of a registered doctor/midwife/nurse, and evidence of the date and time of the appointment. The employee only has to provide this information if the employer asks for it; however if it is requested, the employee will not be entitled to time off until they have provide this evidence.
An employer has the right to refuse the request for time off to accompany where it is "reasonable" to do so – although there is no guidance on what factors should be assessed when deciding if it was reasonable to refuse the request. It is likely to be based in the timing, length and frequency of the appointments, for example, where short notice is given for a non-urgent appointment and cover cannot be arranged in time.
From 1 October 2014, if it is found that an employer unreasonably refused to allow the employee time off, the Employment Tribunal could award compensation equivalent to double their hourly rate for the time they were entitled to take off (from 1 October 2014, the pregnant employee will also be entitled to double her hourly rate in compensation).
Employers should ensure their HR teams and line managers are aware that employees will have the legal right to request time off to accompany pregnant partners/spouses from 1 October 2014 and what forms of proof they are entitled to request the employee to provide. Also, be consistent in terms of requesting evidence – if some employees are asked and others not, there is a risk of treating some employees less favourably than others. Also, any policies will need updating.
In Part 2 we will look at changes to adoption rights and the key elements of the new shared parental leave scheme.
DATE FOR YOUR DIARY!!!! Holiday Pay Calculations...Expected upcoming decisions
The Employment Appeal Tribunal finished hearing Wood & another v Hertel and Fulton & another v Bear (previously both part of Neal v Freightliner which settled the week before the appeal hearing) on 1 August 2014. These cases looked at whether overtime payments should be taken into account when calculating holiday pay. Judgment is expected in the next few months. For information about calculating holiday pay in light of recent domestic and European decisions please see our update.
Consistent with our policy when giving comment and advice on a non-specific basis, we cannot assume legal responsibility for the accuracy of any particular statement. In the case of specific problems we recommend that professional advice be sought.