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GMB Birmingham & West Midlands Region

Maternity & Parental Rights

1.    Can I Take Maternity Leave? 
 
  • All women employees are entitled to 26 weeks Ordinary Maternity Leave (OML) whatever their length of service or hours.  You have the right to return to exactly the same job after your OML.
  • If you have 26 week’s service (at the 14th week before the expected week of childbirth), you will also be entitled to Additional Maternity Leave (AML).  This extends maternity leave for a further 26 weeks starting from the end of OML. The total period of maternity leave is one year. 
  • Your leave can start at any time after the 11th week before the expected week of childbirth.  It is up to you to decide when you start your maternity leave, so long as the start date is after the 11th week before your due date.  The latest maternity leave can start is the date your baby is born. You count your 26 weeks from the date you start your leave. To take maternity leave you should:
  • Notify your employer (a) that you are pregnant (b) the expected week of childbirth and (c) the date on which you intend leave to start, before the end of the 15th week before your due date. Your employer can ask you to put this information in writing.  
  • You can amend the intended start date of your leave with at least 28 days notice where reasonably practicable.
  • Your employer must inform you in writing of your leave period and expected week of return within 28 days of your providing notice.  If you are entitled to AML, you employer should assume you will take it and give you a return date that is 52 weeks from the date you intend to start maternity leave.

 

  • If no earlier than fourteen weeks before the expected week of childbirth, your employer asks, you must supply a medical certificate (Mat B1) stating the expected week of childbirth.  If you do not intend to return, but still qualify for the pay, the Mat B1 need not be given until after what would have been the end of the 3rd week of OML.  You can get the Mat B1 from your midwife after the 20th week of pregnancy.
  • You need not give notice of return to work from OML or AML, unless you wish to return earlier than your full leave entitlement. In that case, you have to give 28 days notice of the revised date of your return.  If you do not give 28 days notice, your employer can postpone your return until 28 days notice has passed.

 

  • OML includes 2 weeks Compulsory Maternity Leave (CML) after childbirth (4 weeks if you work in a factory).  CML means you cannot do any work or even be contacted about work though your employer can contact you, for example, to offer congratulations etc. 
  • There are two instances where maternity leave is automatically triggered
  • Where your baby is born before you are due to start leave and 
  • Where you are absent from work for a pregnancy related reason (e.g. pregnancy related sickness or a possibly a health and safety suspension) after the 4th week before the expected week of childbirth.

If either of these occurs, the notice provisions are adjusted.  You must, nevertheless, tell the employer as soon as you can.   

Complaints about failure to allow you to take or return from maternity leave should be made to an Employment Tribunal.  A three months time limit for making a complaint generally applies. Before making a claim you must put your grievance in writing to your employer.  The time limit for bringing a claim will then be extended by another three months. 

If you are dismissed because you are pregnant, have taken maternity leave or for another reason related to your pregnancy, you can make a claim for unfair dismissal and sex discrimination, even if you have not worked for your employer for a full year (see 19 Am I Protected From Dismissal or Detriment During Maternity).

 

 

2. Can I Get Maternity Pay?

Separate from your rights to maternity leave you may have a right to either Statutory Maternity Pay (SMP) or Maternity Allowance (MA). Your employer pays SMP. The Jobcentre Plus pays MA. Check whether your employer offers contractual maternity pay over and above, and if so whether there are any conditions, for example returning to work for a minimum period of time.

Statutory Maternity Pay (SMP) - To qualify for SMP you must have;

• Worked for your employer for at least 26 weeks prior to the 15th week before your baby is due;

• Earning an average amount which at least equals the lower earnings limit which applies on the saturday at the end of the qualifying week.

• Given your employer evidence of the date your baby is due (usually your Mat B1)

• Given your employer at least 28 days notice that you want to claim SMP (most women give notice for maternity leave and pay at the same time i.e. at the latest by the 15th week before your due date)

• Stopped work.

If you satisfy these conditions you will get;

• 6 weeks pay at 90% of your average earnings and

• for the remaining 33 weeks at the lower of either the standard rate of £139.58 or 90 per cent of your average gross weekly earnings.

Your SMP will normally start on the Sunday after you begin your maternity leave and continue for 39 weeks (the maternity pay period).  If you return to work before the end of the maternity pay period your SMP will stop and you will lose any outstanding amount. 

You get SMP regardless of whether or not you intend to go back to work. SMP is paid by your employer, who claims most of it back from the Inland Revenue. You have to pay tax and national insurance on your SMP. It can be offset against any other entitlements under your contract, except holiday pay. If your employer does not pay you SMP, you should be given form SMP1 explaining why you are not being paid. You can query this with your local Inland Revenue office.

Maternity Allowance (MA) – If you do not qualify for SMP (maybe because you have not worked for your employer long enough or your earnings are too low) you may qualify for MA instead. You should qualify for MA if:

• You meet all of the conditions for SMP but have not been working for your employer for 26 weeks, but have worked for at least 26 weeks out of the 66 weeks prior to the date when your baby is due (even if this was with different employers) you can get MA at £139.58 a week, or 90% of your average earnings, whichever is the lower sum for a maximum period of 39 weeks.

• Your earnings are too low to get SMP (less than the lower earnings limit) but are an average of at least £30 a week from one or more jobs, you can get MA at 90% of your average earnings.
 
To claim MA send form MA1 (obtainable from your local Jobcentre Plus office or ante natal clinics) with your maternity certificate form MAT B1 to your local Jobcentre Plus office.  If you are an employee you will also need to provide form SMP1 which you should get from your employer.

If you are on a low income you may be able to claim a Sure Start Maternity Grant of £500. Speak to your midwife or contact your local Jobcentre Plus for more information.

THESE ARE ONLY THE BASIC STATUTORY RIGHTS. YOUR EMPLOYER MAY PROVIDE HIGHER PAYMENTS. IF NOT, NEGOTIATE!

 

 

3. Am I Protected From Dismissal Or Detriment During Maternity?


• All women employees, whether temporary or permanent and regardless of hours worked or length of service, are automatically protected from dismissal, detriment and selection for redundancy solely or mainly on the grounds of being pregnant, having given birth or taken maternity leave.  There is no option for employers to justify the treatment.  Any dismissal connected to a woman’s pregnancy, childbirth or maternity will generally also be discriminatory.  So an employer cannot:

• Dismiss you or select you for redundancy (unless there is a genuine redundancy situation)

• Dismiss you because of some statutory restriction on employment or on grounds of health and safety.  Instead, the employer should transfer or suspend you.  If transferred you will take on the terms and conditions of the new job (which should not be substantially less favourable).  Suspension will be on full pay (see also Am I Entitled to Ante-Natal Care And/Or Health And Safety Protection)
• Refuse to allow you to return to your job after your maternity leave (unless there has been genuine redundancy or reorganisation)
• Dismiss you for exercising a statutory right such as time off for ante-natal care
• Subject you to any detriment e.g. denial of promotion, training opportunities, facilities
• Use any pregnancy-related sickness as grounds for triggering disciplinary proceedings, dismissing you or making you redundant
• Dismiss you if you are sick at the end of maternity leave and cannot physically return on the appointed day.  Your maternity leave will end and you will then be on sick leave. You should provide your employer with a medical certificate and comply with any other requirements of the sickness policy. If your employer normally provides sick pay this should be paid to you.  If not you may be entitled to statutory sickness benefits – contact your Jobcentre Plus for more information.
• You generally have the right to return to your same job following maternity leave. There are three exceptions.
• Where your employer has 5 or less employees and you have taken additional maternity leave, if it is not reasonably practicable to allow you to return, it will not be automatically unfair for your employer to dismiss you.
• If there is a genuine redundancy and there is no suitable alternative vacancy. If you have at least two years service will be entitled to redundancy pay. Your employer should consult with you about potential redundancies even if you are on maternity leave.
• If there is a genuine redundancy which occurs during the leave period and there is a suitable alternative vacancy, your employer should offer this to you. If you refuse, your employer can dismiss you and you may lose the right to redundancy pay.
• If you are dismissed, the employer must provide you with a written statement of reasons for dismissal.
Complaints about dismissal, redundancy and detriment can be made to Employment Tribunals, generally within 3 months of the action.  Both unfair dismissal and sex discrimination should be claimed. If your employer does not comply with the statutory dismissal procedures before dismissing you, any dismissal will be automatically unfair.

 

 

 4.    Can I Return To My Job After Maternity Leave With All My Service Rights?  

You generally have the right to return to exactly the same job after your maternity leave. However the right to return is slightly different depending on whether you are returning after Ordinary Maternity Leave (OML) or after Additional Maternity Leave (AML). 

·       You are entitled to return to your old job if you take just OML of 26 weeks. 

·       If you return after AML of up to a further 26 weeks, you are entitled to return to your old job, unless that is not reasonably practicable. In that case, you must be offered a similar job – one that is the same kind, in the same place and in the same capacity. 

·       If your job has been made redundant during your OML or AML, your employer must offer any suitable alternative vacancy on broadly comparable terms.

·       You can take up to 4 weeks parental leave immediately after the end of your OML, and return to your old job. You will need to give your employer 21 days notice that you wish to take parental leave. If you take more or if you add any parental leave on to AML, and it is not reasonably practicable for you to return to your old job, you must be offered a similar one (see also What Rights Do I Have to Parental Leave).

·       If you are sick at the end of Maternity Leave and cannot physically return, you transfer to your company or statutory sick pay scheme. You cannot be dismissed unless a man in similar circumstances would be dismissed e.g. exhaustion of sick leave. Even then, the employer has to follow certain procedures, including consultation; investigation of your current medical condition; transfer to alternative employment.

·       If your employer refuses to allow you to return because you have taken the OML or AML, this will be an automatically unfair dismissal (see 19 Am I Protected From Dismissal or Detriment During Maternity). 

Your contract continues in all or some respects depending on whether you are on OML or AML. 

·       During OML of 26 weeks, all contractual rights except pay continue to accrue as normal e.g. seniority and holidays accrue.

·       During AML of up to a further 26 weeks, most of your contractual rights are suspended, except the right to notice, redundancy compensation, disciplinary or grievance procedures, and the duties of trust, confidence and good faith. So seniority, pensions rights pay increments do not accrue. Any scheme reflecting past performance should be paid on a pro rata basis to any work undertaken during the year.

·       OML or AML both count as service for gaining employment protection rights including holiday leave under the Working Time Regulations.

·       Pension contributions and, therefore, pensionable service in occupational pension schemes continue during both OML and AML, but calculated by reference to your actual maternity pay and not your normal pay.  However, in money purchase schemes, only the amount of contribution actually paid will count. 

If you want to change your working pattern, on your return from maternity leave e.g. to work part time, you should make a request for flexible working  Your employer must seriously consider your request and can only refuse if there are good business grounds for doing so (see 28. Can I Request Flexible Working?). 

Complaints about failure to allow you to return to work complaints should be made to an Employment Tribunal, generally within 3 months.  Sex Discrimination complaints and complaints under the Part Time Workers Regulations should also be made to an Employment Tribunal, again within 3 months. 

GMB Aims To Negotiate So That Women Can Always Return To The Same Job With All Accrued Contractual Rights After Either OML Or AML, With Employers Maintaining Pensions Contributions For The Whole Of The Period.

 

 

 5.   Am I Entitled to Ante-Natal Care and or Health and Safety Protection? 

Ante Natal Care 

All women employees, irrespective of service or hours worked are entitled to paid time off during normal working hours for ante natal care. You should be paid at your normal rate of pay and for any travelling and waiting time in attending your appointment. Antenatal care can include parentcraft and relaxation classes, provided they are taken on the advice of your midwife or doctor. After your first appointment, your employer has the right to ask for evidence of further appointments. 

Health and Safety Protection 

All women, irrespective of service or hours worked, are entitled to health and safety protection. Employers must assess the risks to health and safety of any new or expectant mother or her baby or where he employs women of childbearing age. If you are pregnant or breastfeeding, you should request a health and safety risk assessment in writing. Your employer must: 

1) Carry out a risk assessment of any processes or working conditions, physical, chemical and biological agents which could jeopardise your health and/or that of your baby while you are pregnant, breastfeeding or if you have given birth within the previous six months. 

2) If a significant risk is established, your employer must do all that is reasonable to remove it or prevent your exposure to it. 

3) Tell you about the risk and what steps are being taken to deal with it. Your employer should take account of any reasonable fears that you have. You may find it useful to discuss your concerns with your midwife or doctor first. 

4) If the risk cannot be avoided, your employer should, if it is reasonable to do so temporarily alter your working conditions or hours of work; or if this is not possible or does not remove the risk 

5) Offer you suitable alternative work if available (on terms and conditions not substantially less favourable); or this is not available 

6) Suspend you on full pay for as long as is necessary to avoid the risk. If you work nights and your doctor or midwife provides a medical certificate stating that you should not be working at night for health and safety grounds, you employer should offer you day work. If this is not available, you should be suspended on full pay. 

Breastfeeding Although there is no right to breastfeed at work, as a breastfeeding mother, you have special health and safety protection at work under the same rules that protect pregnant women. Breastfeeding includes expressing milk. If you are still breastfeeding when you return to work, notify your employer in writing and ask for a health and safety risk assessment. Your employer is obliged to provide “suitable facilities” for you to rest.  These are not stated except that in the Code of Practice it is advised that they should be “conveniently situated in relation to sanitary facilities and, where necessary, include the facility to lie down”.  

If your working conditions prevent you from continuing to breastfeed successfully, your employer should follow the same steps as outlined above under Health & Safety Protection. Complaints about a failure to allow you to take time off for ante-natal care, to carry out a risk assessment or to force you to work night work can be made to an Employment Tribunal, generally within three months of the action. 

GMB recommends that the room for breastfeeding should be lockable and that there should be a fridge for expressed milk to be stored.  A low comfortable chair should also be provided

 

 

 6.   Can I Take Time Off To Look After A Dependant?  

You can have a reasonable amount of unpaid time off work to take action which is necessary to deal with an unexpected or sudden problem and make any necessary longer term arrangements. This covers the following: 

·       To provide assistance when a dependant, or somebody who reasonably relies you, falls ill (whether physically or mentally), is injured or assaulted; or a dependant gives birth (this may fall within paternity leave). 

·       To make arrangements for the provision of care for a dependant, or any person who reasonably you, who is ill or injured. 

·       To make arrangements when a dependant dies – this could include funeral arrangements, executor functions. 

·       To make arrangements when a dependant’s care unexpectedly breaks down – this could include child, disabled or elderly care.  It also includes making arrangements for the provision of care for the illness or injury of any person who reasonably relies on the employee. 

To deal with an unexpected incident during the time when a school has responsibility for your child Dependants are defined as: 

·       Spouse
·       Child (no age defined).
·       Parent.
·       A person who lives in the same household, but is not a lodger, employee or boarder (this would include live-in unmarried partners, same sex partners, relatives). 

A dependant also includes anyone who reasonably relies on you for assistance and may include the following: 

·       Someone for whom you are the primary carer or the only person who can help in an emergency e.g. a relative who you look after or an elderly neighbour living alone who falls and breaks a leg and you are the closest on hand at the time of the fall. You must tell your employer as soon as possible the reasons for your absence and how long you are likely to be off.  This may not, according to the circumstances, happen until after you return to work.  

The leave is unpaid and it is envisaged that it will be no longer than 1 or 2 days in length. You are protected against dismissal or any detrimental act, including denial of promotion, facilities or training opportunities, by the employer for taking dependants’ leave. 

If your employer has unreasonably refused to allow you to take dependants’ leave, you can make a complaint to an employment tribunal. If the matter is not resolved internally you must make your tribunal claim within 3 months of the refusal. 

Negotiate To Ensure That Leave Is Paid; To Extend Coverage To Special Leave Entitlements Including Paid Paternity Leave, Bereavement Leave; Hospital Visits Etc.

 

 

7.   What Rights Do I Have to Parental Leave? 

If you are a parent, including adoptive parents, an unmarried father named on the child’s birth certificate, or have parental responsibility for a child you may be entitled to parental leave. There are two levels of parental leave: those that are negotiated and those that apply in the default scheme.  

If you negotiate a parental leave agreement it must provide at least the following rights: 

·       A total of 13 weeks unpaid leave, for each child, after 1 year’s service (for parents of disabled children the length of leave is 18 weeks). 

·       Both parents are entitled to parental leave, for each child under 5.  

·       It can be taken up until the child is aged 5.  

·       If the child was adopted on or after 15 December 1999,  the leave can be taken in the five years following adoption, until the child’s 18th birthday. 

·       If you have a child who has been awarded a disability living allowance, the leave can be taken until the child reaches 18 

·       You are protected from unfair dismissal or detriment for taking or asking for parental leave 

·       You have the right to return to the same job if you take 4 weeks parental leave or less. If you take more than 4 weeks parental leave or if you take parental leave after additional maternity leave you will have the right to return to the same job, unless this is not reasonable practicable. In that case you should be offered a similar job on terms and conditions that are not substantially less favourable. Under the default scheme: 

·       Unless you are the parent of a disabled child, leave must be taken in blocks or multiples of one week. (A week is based on your normal working week, so if you normally work three days a week a week’s parental leave would be three days).

·       You can only take four weeks’ leave in any one year.

·       Seniority rights are suspended during leave, but terms relating to duties of trust, confidence and good faith, notice, redundancy compensation and disciplinary or grievance procedures continue.

·       Your employer may request evidence of parental responsibility and, where relevant, disability.

·       You must give your employer at least 21 days notice in writing before each period of leave that you wish to take, stating the start and end dates of the leave. 

·       Your employer can postpone your leave for up to 6 months by giving you 7 days’ counter notice, but only if their business would be unduly disrupted by you taking the leave when you want to.  However, an employer cannot postpone if: 

a) you are the father of a baby and you are taking leave at the time of the birth (see also 26. Can I Take Paternity Leave) or ; 

b) you are adopting a child and taking leave at the time of the placement (see also 25. Can I Get Paid Adoption Leave). 

If your employer unreasonably postpones leave; prevents, or tries to prevent, you from taking leave or subjects you to dismissal or any other detriment, you can take a complaint to an Employment Tribunal.  Complaints generally have to be made within a period of three months.  

NEGOTIATE to make the leave: INCLUSIVE: Cover all workers – not just employees – from Day One; include children over 5. 

WORKABLE: Shorter notice; shorter or no postponement period; option of cancelling, or cutting short, leave. 

FLEXIBLE: Option of taking leave of one or even half a day for all, no restriction on the amount of leave taken in a year, translating leave into part time hours i.e. 13 weeks to 6 months.

 

 

 8.   Can I Take Paid Adoption Leave? 

Adoption leave was introduced in April 2003. Ordinary adoption leave (OAL) lasts for 26 weeks. You can also take up to a further 26 weeks of additional adoption leave (AAL). Only one parent of an adopted child can take adoption leave, however the other could take parental leave or paternity leave for adopters. So joint adopters can choose who takes adoption leave and who takes paternity leave. To qualify you must: 

·       Be an employee i.e. someone with a contract of employment. So some agency, casual and temporary workers may be excluded

·       have been told that you have been matched by an adoption agency with a child, and

·       have told the agency that you agree to the proposed placement, and

·       have been continuously employed for 26 weeks by the date when you are notified of being matched with a child for adoption. You can start the leave:

·       From the actual date of the child’s placement, or

·       from a pre agreed date specified in the notice sent to your employer. Within 7 days of being matched for adoption you must give your employers a written notice which states: 

·       The date on which placement is expected, and

·       whether you want to start the leave when the placement begins or another date. You can vary this date by giving 28 days notice. Your employer can ask for evidence that you are adopting including details of the adoption agency, the date of placement etc. Your employer may pay contractual adoption leave pay or you may be entitled to statutory adoption pay (SAP). SAP is paid for 39 weeks. You are entitled to £139.58 a week or 90% of your pay, whichever is the lower.   

Your contract continues in some or all respects depending on whether you are on OAL or AAL. 

·       During the 26 weeks of OAL all contractual rights, except pay, continue to accrue as normal e.g. seniority and holidays accrue. 

·       During AAL your contract is suspended for all rights except notice, redundancy compensation, and disciplinary or grievance procedures, and the duties of trust, confidence and good faith. So seniority and pension rights pay increments do not accrue 

·       OAL and AAL both count as service for gaining employment protection rights including holidays under the Working Time Regulations. 

·       Pension contributions and pensionable service in occupational pension schemes continue during OAL, but calculated by reference to actual adoption pay and not normal pay. In money purchase schemes only the amount of contribution actually paid will count.

You are entitled to return to the same job if you return after only taking OAL. If you return after AAL, you still have the right to return to the same job, unless it was not reasonably practicable for your employer to keep the job for you. If it is not reasonably practicable you must be offered a similar job – one that is the same kind, in the same place, and in the same capacity. If your job has been made redundant during OAL or AAL your employer must offer you any suitable alternative vacancy on broadly comparable terms. 

You are entitled to carry out up to 10 days of work or training during adoption leave for the purpose of “keeping in touch” with the workplace. 

It is automatically unfair to dismiss you or subject you to any detriment for requesting or taking adoption leave. Any claim must be made to an employment tribunal within 3 months.

 

 

9.   Can I Take Paid Paternity Leave? 

The right to paid paternity leave was introduced in April 2003. It is the right to be "absent from work for the purpose of caring for a child or supporting the child's mother". To qualify for paternity leave you must be: 

·       An employee i.e. someone with a contract of employment. So some casual, temporary or agency workers may not qualify, and 

·       the biological father, or 

·       the husband of the child’s mother, or 

·       the partner of the child’s mother (this is defined as a person, whether of a different sex or the same sex, who lives with the mother in an enduring family relationship but is not a blood relative. You must also: 

·       Have been continuously employed for 26 weeks by the end of the 15th week before the EWC (if the baby is born early, but the qualifying condition would otherwise have been met, you still qualify); 

·       still be employed by your employer up to the child’s birth; 

·       have or expect to have responsibility for the upbringing of the child where you are the biological father; 

·       have or expect to have the main responsibility (apart from the responsibility of the mother of the child) where you are the mother’s husband or partner but not the father of the child. You can choose to take either one or two consecutive weeks’ paternity leave. You cannot take the leave at separate times. Leave must be taken within 56 days of the birth. If the baby is born prematurely you can take leave at anytime from the actual date of birth to up to 56 days after the original EWC. You can choose whether leave starts from: 

·       The actual day of the child’s birth/next working day, or 

·       a day falling a specified number of days after the birth, or 

·       a pre-set date after the EWC (but within 56 days of it). 

You must give your employer notice of your intention to take paternity leave before the end of the15th week before the baby is due. You must provide the following information: 

·       The EWC, and 

·       whether you want to take one or two weeks leave, and 

·       the start date of the leave.  You can vary this date by giving 28 days notice. 

If you qualify, you will be entitled to statutory paternity pay (SPP) of £139.58 a week or 90% of your normal weekly average pay, whichever is the lower, during your paternity leave. To qualify for SPP your average weekly earnings must reach the lower earnings limit for national insurance, (£112 a week currently). The service qualification is the same as for paternity leave. Agency workers, while not qualifying for leave may qualify for SPP. 

To claim paternity pay you must provide your employer with a signed declaration confirming your entitlement i.e. your relationship to the child or its mother, that you have responsibility for the child’s upbringing and that you are taking leave to care for the child or its support the mother, The Inland Revenue produce a model self-certificate Form SC3 which can be used to give notice (web link: www.hmrc.gov.uk). You can use this form to provide notice for leave and pay at the same time.  In that case the latest you can give it to your employer is the end of the 15th week before the baby is due. 

While on paternity leave your normal terms and conditions (except pay) are protected. You are entitled to return to the same job you were in before taking paternity leave. It is automatically unfair to dismiss you or subject you to any detriment for requesting or taking paternity leave. Before bringing a claim, you should lodge a grievance with your employer. Any claim must be made to an employment tribunal within 3 months.  

If you have more than one job, you may be entitled to paternity leave and pay from your other jobs provided you meet the qualifying conditions for leave and pay foreach job. 

For children born on or after 3 April 2011, you may also be entitled to additional paternity leave and pay. Additional paternity leave is for 26 weeks, and additional paternity pay is at £139.58 a week or 90% of your average weekly earnings if less than this. For further details see http://www.direct.gov.uk/ and go to the section on Work and Families.

 

 

10.   Can I Take Paid Paternity Leave If I Adopt A Child? 

If your partner is adopting a child (or you are adopting jointly) you may be entitled to paternity leave and paternity pay for adopters. If you are adopting jointly one of you can take adoption leave (see 25 Can I Take Paid Adoption Leave?) and the other can take paternity leave for adopters. Paternity leave for adopters is only available where a child has been newly matched for adoption by an adoption agency (a step-parent adopting a partner’s child would not qualify for adoption leave). 

To qualify for paternity leave for adopters you must be: 

·       an employee i.e. someone with a contract of employment. So some agency, casual or temporary workers may not qualify, and

·       married to the child’s adopter, or

·       the partner of the child’s adopter (this is defined as a person, whether of a different sex or the same sex, who lives with the adopter in an enduring family relationship but is not a blood relative), or

·       one of a couple adopting jointly. You must also: 

·       have been continuously employed for 26 weeks ending with the week in which the child’s adopter is notified of being matched with the child, and

·       have or expect to have the main responsibility (apart from the adopter) for the upbringing of the child;

·       be taking the time off to support the child’s adopter or to care for the child. If you qualify you will be entitled to take either one or two week’s paternity leave for adopters. You can choose whether to take one week or two but if you take two week they must be consecutive. You cannot take the leave at separate times. Leave must be taken within 56 days of the placement. You cannot start your leave before the child has been placed. You can choose to start the leave from: 

·       the actual date of the child’s placement/next working day, or

·       any day falling within a specified number of days after the placement , or

·       a pre agreed date after the expected date of placement. You must give a written notice to your employers within 7 days of being matched for adoption. You must state in the notice: 

·       the date when you expect the child to be placed, and

·       whether you want to take 1 or 2 weeks leave, and

·       the start date of the leave. You can vary this date by giving 28 days notice. 

Your employer can ask for evidence of your entitlement to paternity leave and pay for adopters including details of the adoption agency, the date of placement etc. The Inland Revenue produce a model self-certificate SC4 which you can use as a self declaration of entitlement and to give notice for leave and pay (web link www.hmrc.gov.uk). 

You may be entitled to statutory paternity pay of £139.58 per week or 90% of your normal weekly pay, whichever is the lower, during your leave. To qualify your average weekly earnings must reach the lower earnings limit for national insurance, (£112 per week at present). The service qualification is the same as for leave. 

While on paternity leave for adopters your normal terms and conditions are protected, except pay. You are entitled to return to the same job you were in before taking paternity leave. It is automatically unfair to dismiss you or subject you to a detriment for requesting or taking paternity leave for adopters. Before bringing a claim you should lodge a grievance with your employer. Any claim must be made to an employment tribunal within 3 months.

 

 

11.   Can I Request Flexible Working? 

You may have a statutory right to request flexible working to care for a child or, since 6 April 2007, to care for an adult. To qualify for the right to request you must be an employee (i.e. someone with a contract of employment, so some casual or temporary workers may be excluded). You must also have at least 26 weeks of continuous employment with your employer.. The request must be made and considered under a special procedure. 

There is no automatic right to flexible working. However your employer must properly consider your request and can only refuse on the following specified grounds: the burden of additional costs; detrimental effect on ability to meet customer demand; inability to re-organise work among existing staff; inability to recruit additional staff; detrimental effect on performance; insufficiency of work during the periods the employee proposes to work; planned structural changes. 

Carers of children: you must 

·       be making the request in respect of a child under 6 years old, or under 18 years old if the child receives Disability Living Allowance.

·       Be the mother, father, adopter, guardian, or foster parent of the child, or be married to one of them or be their partner.(This is defined as a person, whether of a different sex or the same sex, who lives with the child and the mother, father, adopter, guardian, foster parent in an enduring family relationship, but is not a blood relative).

·       Have or expect to have responsibility for the upbringing of the child. 

Carers of adults: you must 

·       be caring, or expect to be caring, for a person over the age of 18;

·       make the request in order to care for that person;

·       be the spouse, partner, civil partner or relative, or live at the sme address as the adult needing care. 

In both cases your application must be made to either care for the child or for the adult needing care. You must not have made another application under the same right during the previous 12 months. 

There is a complicated procedure for making the request, and the following is a brief summary: 

·       Your request must be in writing. State that it is being made under the statutory right to request flexible work.

·       Specify what change you are seeking, and when it is to take effect. You also need to explain what effect, if any, you think the change will have on your employer, and how you think any such effect can be dealt with (this does not have to be in complicated detail). You must explain the relationship between you and the child.

·       If your employer agrees to the request outright it will take effect as a permanent change to your contract, although you can agree with your employer that it will last for a set period of time only.

·       If your employer does not agree to the request at this stage, s/he must hold a meeting with you within 28 days to discuss it.

·       You are entitled to be accompanied at the meeting by anyone also employed by the same employer e.g. a shop steward. Your companion can address the hearing and question management but cannot answer questions on your behalf. If your companion is not available you can ask for the meeting to be postponed for up to 7 days.

·       Your employer must inform you of its decision in writing, within 14 days of the meeting. If your request is rejected your employer must give reasons. You can appeal, in writing, within 14 days.

·       Your employer must hold an appeal meeting within a further 14 days. You have the same right to be accompanied as at the original meeting. You should be informed of the appeal result in writing within 14 days of the meeting. If your appeal is rejected, you must be given an explanation.

·       You can complain to an Employment Tribunal on the grounds that your employer has failed to hold a meeting or an appeal meeting, failed to give you a decision on the request or appeal, refused the request on non-specified grounds, or rejected the request on incorrect facts. The time limit for making a claim is 3 months. The Tribunal can order the employer to re-consider the request and/or compensation. In some circumstances a refusal to allow flexible working may breach the rules against sex discrimination.

·       In addition you can complain if your employer has refused you the right to be accompanied at the meeting or appeal, or has refused to allow a postponement of the meeting. It is also automatically unfair to dismiss you or subject you to a detriment for requesting flexible working. 

The Department for Business Enterprise and Regulatory Reform has produced standard forms which you can use if you wish, available from their website: http://www.berr.gov.uk/ (go to the section on employment matters and flexible working).

 

 

12.   Am I entitled to be paid while off sick from work? 

GMB negotiates sick pay schemes for its members, so check to see if your employer has a sick pay policy. If not, the law sets minimum standards through Statutory Sick Pay (SSP). Your employer has to pay you SSP when off sick from work. 

·       You are entitled to SSP after three qualifying days of absence, provided:

·       You are absent for four or more (not necessarily working) consecutive days. This forms a Period of Incapacity for Work (PIW). Two PIWs can be ‘linked’ and treated as a single PIW if 8 weeks or less separates them.

·       Your absence also has to fall in a “period of entitlement”. The period of entitlement begins with the PIW. The employer’s liability to pay SSP ends if:

·       You are no longer sick;

·       you reach the maximum entitlement of 28 weeks, or three years have elapsed since you began your PIW;

·       your contract ends, unless your employer is trying to avoid paying SSP; you are detained in legal custody; or

·       you become entitled to Statutory Maternity Pay or Maternity Allowance and are within the maternity pay period.

·       SSP can be paid for a maximum of 28 weeks.·       You are not entitled to SSP if on the first day of incapacity:

·       you are on a fixed term contract of 3 months or less and you have worked less than 13 weeks. If you are on a series of contracts and no more than eight weeks separates these you can link them together for this purpose;

·       your average earnings are less than the lower earnings limit (£112.00 a week from April 2015);

·       in the previous 57 days you were entitled to Severe Disablement Allowance or Employment and Support Allowance;

·       you have done no work at all under the contract. If you had worked for an employer under a previous contract which ended not less than eight weeks before, you are not excluded;

·       there is a trade dispute in which you have a direct interest;

·       you have exhausted the 28 weeks with a former employer and there is a gap of 56 days or less since you last received SSP;

·       you are or have been pregnant and are within the maternity pay period;

·       you are detained in legal custody, or you are not in the European Union. 

If you are excluded or have exhausted your entitlement, you may transfer to Employment and Support Allowance (ESA). Entitlement to (ESA) depends on a number of factors including your national insurance record. Otherwise you may be able to claim income support (IS), a means tested benefit.

 

 

13.   How much sick pay am I entitled to? 

This depends on whether you are eligible for Statutory Sick Pay (SSP) or Employment and Support Allowance (this replaced Incapacity Benefit in October 2008 which is in the process of being phased out) or your employer’s own scheme. Many employers improve upon the basic State scheme and provide full pay or half pay. Usually, the more service you have with the employer, the better the entitlement.  Check your rights under your written particulars of employment and any collective agreement. 

SSP is paid at a weekly flat rate of £139.58. There is no increase for dependants for SSP. 

Employment and Support Allowance consists of two “phases”: an assessment phase and a main phase. The rate paid depends on the phase and age of the person concerned with possible additional premiums for pensioners, severe disability, carer and enhanced disability. 

From April 2010 GP “Fit Notes” replaced the previous “sick notes” or medical statements from GPs to certify sickness absence. Previously a sick note stated whether a doctor believed that a person should or should not be in work. The fit note now indicates whether a person is fit for work, or might be fit for work under certain circumstances.

The doctor can suggest changes to assist a return to work: although there is no requirement for the GP to write anything othat than that the person is not fit for work and how long they are “signed off” for. The basic purpose of the medical statement remains the same as it was and is still used by employees as confirmation of illness if claiming sick pay.
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