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Emma O'Connor
Emma O'Connor,
HEAD OF TRAINING
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Time off to accompany at antenatal appointments
17 September 2014

Currently…

At present, pregnant employees/agency workers have 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, although to gain the right, an agency worker must have completed a 12 week qualifying service period with the same organisation in the same role. The employee should provide her employer with as much notice as possible and provide evidence of the first appointment if requested by the employer (except in the case of the first appointment), (the agency worker must provide similar evidence to their agency).

However, at the moment, the prospective father or husband or partner of a pregnant woman has no legal right to accompany them at 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. 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 and/or bring a claim for an unreasonable refusal of their right.

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. would not be entitled)
  • 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. This can be by way of a signed declaration. The employer is not entitled to see the woman’s appointment card.

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).

Conclusion

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.

BIS has also produced some useful guidance which can be found here.

For details of these changes or for information about how these changes could affect you or your business, please contact our Employment Team on 0118 952 7284 or submit an enquiry.

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.

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