As part of the wide-ranging changes due to come into force next year in the area of parental rights, men will soon be entitled to take time off work to attend some of their partners’ antenatal appointments.
The Current Position
Pregnant employees and agency workers have the right to take time off work to attend antenatal appointments. Employees have the right to be paid for any time off work for the purpose of attending these appointments.
The meaning of “ante-natal care” has been the subject of some debate over the years, particularly as mothers are increasingly encouraged to engage in less traditional methods of care such as yoga or other relaxation classes. Obviously appointments with midwives or other specialists, e.g. Consultants, will be covered and the Government has indicated that other antenatal care, where it is recommended by a registered medical practitioner, midwife or nurse, will also attract the right to paid time off.
The right is, technically, to not be “unreasonably refused time off” so there may be circumstances in which a refusal to allow time off will be reasonable. Although there is no guidance on this point, it might be reasonable to refuse time off if, say, it is reasonably possible for the woman to arrange the appointment outside of working hours or the beginning or end of the working day. Employers should tread carefully, however, if refusing time off.
The New Rights
From 1 October 2014, the right to take time off for antenatal care will be extended to fathers and partners. Under the new rules, fathers and partners will be entitled to attend up to two antenatal appointments, totalling no more than 6.5 hours for each appointment.
As with pregnant women, the right extends to both employees and agency workers but, in the case of the latter, they must have completed their 12 week qualifying period, continue in the same role, and have had no break between assignments or during an assignment when they have not been working.
Unlike with pregnant women, however, there is no right to be paid in respect of this time off. The time will be unpaid unless the employer exercises its discretion to make a payment. Again, the right is not to be “unreasonably refused time off” so, in theory, it may be reasonable to refuse time off depending on the circumstances.
To qualify for the right to time off, the employee/agency worker must have a “qualifying relationship” with the pregnant woman or expected child. They should therefore be the father of the child, the husband or civil partner of the pregnant woman, the person living with the pregnant woman but who is not a relative (e.g. not her parent), in a same-sex relationship with the woman and who will be considered the “other parent”, or the potential applicant of a parental order in a surrogate situation.
Getting it Wrong
If the employer gets it wrong, and unreasonably refuses time off to a qualifying employee or agency worker, the employee/worker can bring a claim in the Tribunal and, if successful, an award of compensation can be made of double the hourly rate paid for the time that would have been taken off had the employee/worker been permitted to take the time off. There is also automatic protection from unfair dismissal where the reason or principal reason for the dismissal is that the employee has sought to take time off (in other words, they will not need the usual qualifying 2 years’ service).
Employers should prepare now by familiarising themselves with the new rules, in the event that they get a request for time off after 1st October. Any policies dealing with time off/parental rights should be updated (generally in the Handbook).
They should ensure that managers are also aware of the new rules, and how they should deal with any requests received, so as to ensure that they do not inadvertently breach the legislation and put the employer at risk.
This may also be a good time to consider what the employer’s policy is going to be as regards payment for the time off. Technically, there is no obligation to pay the employee for the time off but many employers already have an “unofficial” policy of allowing fathers/partners to attend such appointments as milestone scans and permit payment for that time off. Enshrining that right in a policy could be advantageous to the employer, as it may go towards improving staff engagement and loyalty. The employee will be able to see the extent to which the employer is investing in its employees, both mothers and fathers alike.
Many employers will already have an unofficial policy in place allowing fathers/partners to attend milestone antenatal appointments such as scans. However, the change in law will provide an opportunity for the employer to demonstrate its investment in employees’ welfare and, thus, be used to the employer’s advantage. From April next year, fathers will be able to take up to 50 weeks’ parental leave, so the tide is definitely turning towards increased engagement of fathers in the early upbringing of their children. Acknowledging this early on and demonstrating family friendly policies can be a good “PR coup” for employers, with the positive impact of increased engagement, motivation and loyalty.
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