The AfC NHS Terms and Conditions of Service Handbook states that parental leave should be a separate provision from either maternity or paternity leave and should provide an untransferable individual right to at least 13 weeks' leave (18 weeks if the child is disabled).
Leave is normally unpaid, but may be paid by local agreement. It should be applicable to any employee with twelve months' service in the NHS who has nominated caring responsibility for a child under age 14 (18 in cases of adoption or disabled children).
Leave arrangements need to be as flexible as possible, so that the leave may be taken in a variety of ways by local agreement. Parental leave can be added to periods of paternity or maternity leave.
Notice periods should not be unnecessarily lengthy and should reflect the period of leave required. Employers should only postpone leave in exceptional circumstances and give written reasons. Employees may also postpone or cancel leave that has been booked with local agreement.
During parental leave the employee retains all of his/her contractual rights, except remuneration and should return to the same job after it. Pension rights and contributions shall be dealt with in accordance with NHS Superannuation Regulations. Periods of parental leave should be regarded as continuous service.
It is good practice for employers to maintain contact (within agreed protocols) with employees while they are on parental leave.
What the law says
What is parental leave?
Parental leave is a right for parents to take time off work to look after a child or take arrangements for the child's welfare. Parents can use it to spend more time with children and strike a better balance between their work and family commitments.
Who can take parental Leave?
Parental leave is available to employees who have, or expect to have, parental responsibility for a child. To be eligible, employees generally have to have one year's continuous service with their current employer. However, special rules apply for parents of children born, or placed for adoption, before 14 December 1999. They will be eligible for parental leave from their current employer if they completed one year's continuous service with another employer between 15 December 1998 and 9 January 2002.
How long does parental leave last?
Employees get 13 weeks in total for each child. Parents of disabled children get 18 weeks in total.
Employees will be able to take parental leave in short or long blocks depending on what has been agreed where they work. (For the purposes of parental leave a "disabled child" is one for whom an award of disability living allowance has been made).
What happens if an employee has twins?
Parental leave is for each child, so if twins are born each parent will get 13 weeks' leave for each child (18 weeks for parents of each disabled child).
When can parental leave be taken?
As long as the correct notice is given to the employer, parents are able to take parental leave at any time up to the cut-off point which applies to them:
- Parents of children born on or after 15 December 1999 can take leave up to their child's fifth birthday
- Adoptive parents of children placed for adoption between 15 December 1994 and 14 December 1999 can take leave up to 31 March 2005 (or the child's 18th birthday if that is sooner)
- Adoptive parents of children placed for adoption on or after 15 December 1999 can take leave up to the fifth anniversary of the date of placement (or the child's 18th birthday if that is sooner)
- Parents of disabled children from any of these categories can take leave up to their child's 18th birthday.
Will employees be able to return to the same job after parental leave?
At the end of parental leave, an employee is guaranteed the right to return to the same job as before if the leave was for a period of four weeks or less; if it was for a longer period the employee is entitled to return to the same job, or, if that is not reasonably practicable, a similar job which has the same or better status, terms and conditions as the old job.
When parental leave follows maternity leave, the general rule is that a woman is entitled to return to the same job she had before the leave. If at the end of additional maternity leave, this would not have been reasonably practicable, and it is still not reasonably practicable at the end of parental leave, she is entitled to return to a similar job which has the same or better status, terms and conditions as the old job.
What procedures have to be followed before an employee can take parental leave?
Employers and employees can agree their own procedures for taking parental leave. They can do this by using workforce or collective agreements or through individual arrangements. Any of these agreements will apply to an employee only if it is part of the employee's contract of employment.
What happens if there is no agreement?
There is a fallback scheme which will apply automatically where employers and their employees have no other agreement operating.
What happens under the fallback scheme?
Under the fallback scheme the following provisions will apply:
In most cases, leave must be taken in blocks or multiples of one week;
The exception to the above is that parents of disabled children can take leave in blocks or multiples of one day;
In all cases a maximum of four weeks' parental leave in a year can be taken in respect of any individual child;
21 days' notice must be given;
The employer can postpone the leave for up to six months where the business would be particularly disrupted if the leave were taken at the time requested;
Leave cannot be postponed when the employee gives notice to take it immediately after the time the child is born or is placed with the family for adoption.
What is the procedure for postponing leave under the fallback scheme?
If an employer considers that an employee's absence would unduly disrupt the business, then the employer can postpone the leave for no longer than six months after the beginning of the period that the employee originally wanted to start his or her parental leave. The employer should discuss the matter with the employee and confirm the postponement arrangements in writing no later than seven days after the employee's notice to take leave. The employer's notice should state the reason for the postponement and set out the new dates of parental leave. The length of the leave should be equivalent to the employee's original request.
Under what circumstances can an employer postpone leave in the fallback scheme?
Employers may be justified in postponing leave when, for example, the work is at a seasonal peak; where a significant proportion of the workforce applies for parental leave at the same time; or, when the employee's role is such that his or her absence at a particular time would unduly harm the business.
Can leave be postponed under the fallback scheme if an employee wants to take leave immediately after the birth or adoption of a child?
When an employee applies to take parental leave immediately after the birth or adoption of a child, then the employer cannot postpone the leave. The employee needs to give 21 days' notice before the beginning of the expected week of childbirth (expectant mothers will be able to provide this information to their partners). In the case of adoption, the employee needs to give 21 days' notice of the expected week of placement. In rare cases where this is not possible, an adoptive parent should give the notice as soon as is reasonably practicable.
Do employers need to keep records?
Employers are not required to keep records of parental leave taken, although many will want to do so for their own purposes. When an employee changes jobs, employers will be free to make enquiries of a previous employer or seek a declaration from the employee about how much parental leave he or she has taken.
Can employers ask for evidence that the employee is entitled to parental leave?
An employer can ask to see evidence to confirm the employee is the parent or the person who is legally responsible for the child; evidence might take the form of information contained in the child's birth certificate, papers confirming a child's adoption or the date of placement in adoption cases, or in the case of a disabled child, the award of disability living allowance for the child. The employer's request must be reasonable; it may not be reasonable for him to check on the employee's entitlement on every occasion on which leave is asked for.
In cases where the employee's child was born or adopted between 15 December 1994 and 14 December 1999 (between 15 December 1981 and 14 December 1999 for disabled children), an employer can ask to see evidence of service with a previous employer, where that period of service is being used in determining entitlement to parental leave.
What if an employer refuses to allow an employee to take parental leave?
Employees will have the right to go to an employment tribunal if the employer prevents or attempts to prevent them from taking parental leave. An employee who takes parental leave will also be protected from victimisation, including dismissal, for taking it.
