Why is this important?
Parental rights at work
Table of contents
- Rights of working parents
- Paternity leave
- Adoption leave
- The right to ask for flexible working
- Maternity rights
- Extra rights given by the contract of employment
- Workers who do not have statutory maternity rights
- Time off for ante-natal care
- Right to work in a safe environment
- Dismissal or discrimination because of pregnancy
- Maternity leave
- Maternity Pay
- Tax credits
- Social security benefits
- Further information
Working parents have the following legal rights:
- paid and unpaid maternity leave
- paid paternity leave
- paid and unpaid adoption leave
- to request flexible working hours
- unpaid parental leave for parents of children under five (18 if your child is disabled)
- unpaid time off to deal with unexpected problems with the care of dependants.
These rights apply to parents in same-sex as well as in opposite-sex relationships.
For information about parental leave and time off work to care for dependants, see Basic rights at work.
If you are a working father, you are entitled to one or two weeks’ paternity leave when you and your partner have a child. Some other people are also entitled to paternity leave – see below. You can also qualify for paternity leave when you adopt a child. Most fathers will be entitled to statutory paternity pay for their paternity leave. Statutory Paternity Pay is paid at the same rate as Statutory Maternity Pay (see under heading Maternity Pay).
To qualify for paternity leave for a birth, you must:-
- have been employed by the same employer for at least 26 weeks by the end of the 15th week before the expected week of childbirth; and
- be the biological father of the child, or be married to or be the partner of the baby's mother (this includes same-sex partners, whether or not they are registered civil partners); and
- have responsibility for the child's upbringing and wish to take time off to care for the child or support the mother. This responsibility for the upbringing of the child may be shared with the child's mother; and
- have given your employer the correct notice to take paternity leave.
To qualify for paternity leave for an adoption, you must:-
- be employed for at least 26 weeks by the time you are matched with your child for adoption. (You will not be entitled to paternity leave or pay if you already know the child, for example, if it's your stepchild)
- not be taking adoption leave. (Where you and a partner are adopting a child, one of you can take adoption leave and one paternity leave)
- have responsibility for the child's upbringing and wish to take time off to care for the child or support the mother. This responsibility for the upbringing of the child may be shared with the child's mother
- have given your employer the correct notice to take paternity leave.
When can you take paternity leave
If you are taking paternity leave for a birth, the leave can start either on the day the baby is born or on a date that has been agreed in advance with your employer. Your paternity leave cannot start before the baby is born, and, if you are agreeing a date later than the birth of your baby, it must be completed within 56 of days of the birth.
If you are taking paternity leave for an adoption, the leave can start either on the day that the child is placed with you, or on a date that has been agreed in advance with your employer. If you are agreeing a later leave date later than the date your child was placed with you, the leave must be completed within 56 days of the adoption date.
Telling the employer about your paternity leave
You need to be able to show your employer that you are entitled to paternity leave. To do this you must give the employer the following information:-
- your name
- the date the baby is due or the date of the birth. If you are adopting a child you should give the date that you were matched with your child or the date on which the child is placed with you
- the date when you would like your paternity leave (and pay) to start
- whether you are taking one or two week's paternity leave
- a declaration that you are entitled to paternity leave
- a declaration that you are taking leave to support the mother or care for the child.
You can use self-certificates to provide this information to your employer. These self-certificates are available on the website of HM Revenue and Customs at: www.hmrc.gov.uk for a birth child and www.hmrc.gov.uk for an adopted child.
You must also give your employer notice that you want to take paternity leave. The notice must be in writing if your employer asks for written notice. You must give notice 15 weeks before the baby is due or, if this is not practical, as soon as possible once you know you want to take leave. If you are adopting a child, you must give notice no later than seven days after the date you are matched with your child for adoption. If this is not practical you must give notice as soon as possible once you know you want to take paternity leave.
If you change your mind about when you want to take paternity leave you can, but you should give your employer 28 days' notice of the changed date.
If you are expecting a child on or after 3 April 2011, or you are adopting a child which is matched with you on or after 3 April 2011, you may be able to share leave between yourself and your partner.
If your partner hasn't used up all of their statutory maternity leave and has gone back to work, you can take the remainder of their leave off instead.
This is called additional paternity leave. You can take this after the baby is 20 weeks old but before they are 1 year old. You have to take the leave all in one go.
You have to give your employer notice that you want to take additional paternity leave. You also have to give them evidence that you are entitled to it. This includes a declaration from your partner that they have gone back to work.
If your partner hasn't used up all their entitlement to statutory maternity pay or maternity allowance, you can be paid additional statutory paternity pay for the rest of the time they were entitled to it.
Further information about paternity leave
In Northern Ireland, you can find more information about paternity leave. Go to www.nidirect.gov.uk.
An organisation called Working Families has a text and e-mail service for fathers which gives more information about their rights at work. The text number is 0780 000 4722 and the e-mail address is email@example.com.
For more information in England, Wales and Scotland about paternity leave and paternity pay, see Rights of working fathers in Employment fact sheets.
If you are a working parent who has been matched with a child for adoption or if you have had a child placed with you for adoption, you may be entitled to adoption leave. You must have worked for your employer for at least 26 weeks ending with the week in which you are notified you have been matched with a child for adoption.
If you adopt a child from overseas there are different rules. In this case you must have worked for your employer for at least 26 weeks by the end of the week in which you receive official notification, or from the day you started working for your employer.
The rights outlined here apply only to employees who have been matched with a child through an adoption agency or, in the case of an overseas adoption, received official notification. They do not apply to private adoptions.
Adoptive parents are entitled to up to 52 weeks’ adoption leave. If you are matched with a child on or after 3 April 2011 you may be able to share leave with your partner.
Adoptive parents are entitled to up to 52 weeks’ adoption leave.
Most parents will be entitled to Statutory Adoption Pay (SAP). This is paid at a flat rate of£138.18 a week, or 90 per cent of your normal weekly earnings, whichever is lower. You get SAP for 39 weeks.
You may also be entitled to some adoption pay under your employment contract.
Where a couple adopts a child, only one parent is entitled to take adoption leave. The other parent may be able to take paternity leave (see under heading Paternity leave). This includes same-sex couples.
Telling the employer about your adoption leave
You must notify your employer that you want to take adoption leave no more than seven days after you have been notified that you have been matched with a child for adoption, or as soon as is practical after this. You must tell your employer the date on which you expect the child to be placed with you and the date on which you want your statutory adoption leave to start.
The partner of a person who adopts, or in a couple the person who is not taking adoption leave, may be entitled to paternity leave and pay.
In Northern Ireland, the Nidirect website has more information about adoption leave. Go to www.nidirect.gov.uk.
If you are the parent of a child, you have the right to ask for flexible working if your child is:
- under 17
- under 18 and disabled.
You must also have worked for your employer for at least 26 weeks and must be responsible for your child on a day to day basis.
If you are caring for an adult, you also have the right to ask for flexible working.
For more information about caring for an adult and flexible working, see Basic rights at work.
Flexible working can include working part time, working school hours, working flexitime, home working, job sharing, shift working, staggering hours and compressing hours (where you work your total number of agreed hours over a shorter period).
Although you have the right to ask to work flexibly, your employer doesn't have to agree to it. However, they must give your request serious consideration and have a good business reason if they decide not to agree.
You can make one request to work flexibly each year. This must be in writing. You should say how you think the change in your working pattern will affect your employer's business and how this might work in practice.
Your employer must also follow a standard procedure for considering your request. This includes having a meeting with you. If your employer wants to turn down your request for flexible working, they must give their reasons in writing. You have the right to appeal if your request is turned down. You must do this in writing, within 14 days of getting your employer's decision. You should give your reasons for appealing and make sure your appeal is dated.
If your appeal for flexible working is refused, you may be able to:
- ask ACAS to help you sort out your dispute with your employer (in Northern Ireland this is the Labour Relations Agency). ACAS has set up a flexible working arbitration scheme to deal with this type of dispute. You can find out more on the ACAS website at www.acas.org.uk
- complain to an employment tribunal.
You can only complain to an employment tribunal under certain circumstances, for example, where your employer hasn't followed the procedure properly for considering your request or where they haven't taken the right information into account when making their decision.
You may also be able to make a claim to an employment tribunal for discrimination. For example, you can make a claim if you are a man and your request to work part-time to look after your children is refused when a request by a female employee would be accepted. If you are a woman, you may be able to make a claim on the basis that refusing to allow you to work flexibly is 'indirect sex discrimination'. This is because more women than men have childcare responsibilities.
This is a very complicated area. If you want to make a claim to an employment tribunal because your employer has refused your request for flexible working, there are strict time limits and procedures to follow. You should get advice from an experienced adviser, for example, at a Citizens Advice Bureau. To search for details of your nearest CAB, including those that can give advice by email, click on nearest CAB.
You should also bear in mind that an employment tribunal may not be able to over-turn your employer's decision. However, it may be able to force your employer to reconsider your request or to award you compensation.
For more information about the right to flexible working, go to the GOV.UK website at: www.gov.uk.
In Northern Ireland, you can find further information about the right to flexible working on the Nidirect website at www.nidirect.gov.uk.
There are a number of rights for pregnant women given by the law. These are known as statutory rights:-
- the right of all pregnant women to take time off work for ante-natal care (see under heading Time off for ante-natal care)
- the right of all pregnant women to work in a safe environment (see under heading Right to work in a safe environment)
- the right of all pregnant women to claim discrimination and unfair dismissal if dismissed because of pregnancy or maternity leave, see under heading Dismissal or discrimination because of pregnancy
- the right to take up to 52 weeks’ maternity leave
- the right of some pregnant women to Statutory Maternity Pay (SMP), see under heading Maternity Pay
- the right to return to work after you have had the baby. A refusal to allow you to return to work after having your baby will be a dismissal and will also be discrimination - see under heading Dismissal or discrimination because of pregnancy.
For more information about maternity leave and your right to return to work, see Maternity leave.
The statutory rights outlined above are minimum rights. Many workers will have better rights in their contract of employment.
For more information on contracts of employment, see Contracts of employment.
Some workers do not have any statutory maternity rights. They are:-
- share fisherwomen
- women who are normally employed abroad (unless they have a work connection with the UK)
- self-employed women
- policewomen and women serving in the armed forces, who are entitled to Statutory Maternity Pay and can claim sex discrimination but who are not entitled to the other rights for pregnant workers.
Any woman (except some types of workers, see under heading Workers who do not have statutory maternity rights) who is working and pregnant will qualify, regardless of how long they have worked for their present employer, and regardless of how many hours per week they work.
The right to paid time off
You can have time off for appointments for ante-natal care if your doctor, midwife or health visitor advises that it is needed. Your employer should pay your usual wage for the time off, as long as you only have a reasonable amount of time off. However, if you take a lot of time off, you may be treated as if you are off sick, and will only get paid if your contract of employment allows for you to be paid sick pay. If you are off sick, you may qualify for Statutory Sick Pay (SSP) or Employment and Support Allowance (ESA).
After the first ante-natal appointment, you will have to show your employer, if requested, a medical certificate stating that you are pregnant, and an appointment card for the ante-natal care.
There is no legal right for fathers to have time off work to attend ante-natal appointments. However, the Government recommends that employers allow fathers either to take paid time off, or to make up lost time later. For more information, see the BIS leaflet, Fathers-to-be and ante-natal appointments – a good practice guide, on the Department for Business, Innovation and Skills (BIS) website at www.bis.gov.uk.
If your employer refuses time off or refuses to pay for time off
If your employer refuses to allow time off for an ante-natal care appointment or refuses to pay, you can complain to an employment tribunal within three months of the appointment. The tribunal may tell your employer to pay the wages they have withheld.
If you want to make a claim to an employment tribunal you should consult your union representative or, if you are not a union member, an experienced adviser, for example, a Citizens Advice Bureau. To search for details of your nearest CAB, including those that can give advice by email, click on nearest CAB.
An employer has a legal duty to make the working environment safe for all employees, and particularly for women of childbearing age, to work in. This means that the employer must assess what health and safety risks there are in the workplace, and specifically, what risks may be posed to pregnant women, women who are breastfeeding and women who have given birth in the past six months.
Where there is a health and safety risk in the workplace, the employer must take action to eliminate the risk by:-
- taking any legal action required, for example, ensuring that pregnant women do not come into contact with hazardous chemicals
- altering your working conditions or hours of work so you are not put at risk, for example, a shop assistant could be given a chair so she does not have to stand for long periods. Other examples are, a person working at a computer could be given a more comfortable chair or more breaks and a woman whose job entails some lifting could have someone else do the lifting for her
- if altering your working conditions or hours is not possible, the employer must consider offering you different work, at the same pay
- if offering you different work is not possible, your employer must suspend you on medical grounds and pay you full pay while you are suspended.
If you are a pregnant woman or have recently given birth or are breastfeeding and you think you are at risk through health and safety problems at your workplace, you should consult an experienced adviser, for example, at a Citizens Advice Bureau. To search for details of your nearest CAB, including those that can give advice by email, click on nearest CAB.
You can find more information about breastfeeding when you return to work from the national charity Maternity Action .You can download an information sheet from their website at: www.maternityaction.org.uk.
If you are dismissed or treated unfairly because of pregnancy, you can make a claim for discrimination and unfair dismissal to an employment tribunal (Industrial Tribunal in Northern Ireland). It does not matter how long you have worked for your employer or whether you work full or part-time. This is because the law says that it is discrimination and automatically unfair to dismiss a woman because she is pregnant.
For more information about unfair dismissal, see Dismissal.
In England Wales and Scotland, for more information about discrimination because of pregnancy and maternity - see Discrimination at work because of pregnancy or maternity leave.
In Northern Ireland, see Taking action about sex discrimination.
If you want to make a claim to an employment tribunal you should consult your union representative or, if you are not a union member, an experienced adviser, for example, at a Citizens Advice Bureau. To search for details of your nearest CAB, including those that can give advice by e-mail, click on nearest CAB.
The effect of dismissal for pregnancy on other maternity rights
Dismissal because of pregnancy does not affect your entitlement to any of the other maternity rights. If you qualify for statutory maternity pay and for the right to return to work, you will still qualify if you are dismissed because you are pregnant.
Most women employees have the right to take up to one year’s (52 weeks’) maternity leave. This does not depend on how long you have worked for your employer.
For more information about maternity leave, see Maternity leave.
Statutory Maternity Pay (SMP)
You can claim SMP if:
- you've worked for the same employer for 26 weeks continuously into the 15th week before your baby is due. It doesn't matter how many hours a week you work. For example, if your baby is due the week beginning 8 May 2011(expected week of childbirth), 15 weeks before that is week beginning 23 January 2011 (the qualifying week), and 26 weeks before the qualifying week is the week beginning 7 August 2010. So you would have to have started work on or before 7 August 2010 in order to qualify for SMP if your baby is due in the week of 8 May 2011; and
- you are pregnant at, or have had the baby by, the 11th week before the week the baby is due; and
- you have average weekly earnings of at least the national insurance lower earnings limit. This is worked out on the average earnings that you actually receive in the eight weeks up to the 14th week before your baby is due. Earnings means gross pay, overtime and bonus payments, back pay, SMP and holiday pay. They all count if they are made during this time.
To check the lower earnings limit, look on HM Revenue and Customs website at www.hmrc.gov.uk.
Some women cannot claim Statutory Maternity Pay (SMP) from their employer because they have no entitlement to maternity leave (see under heading Workers who do not have statutory maternity rights).
A woman who is not entitled to Statutory Maternity Pay may be entitled to Maternity Allowance paid by the Department for Work and Pensions (DWP).
For information about Maternity Allowance, see Benefits for families and children.
When is SMP paid
SMP is paid for up to 39 weeks.
The earliest that you can start your maternity leave and therefore start getting SMP is the 11th week before the baby is due. The latest you can start your maternity leave and therefore start getting SMP is the week after the week when the baby is born. You can choose when you want your SMP to start within this period, unless you are sick.
If you are sick with a pregnancy-related illness in the four weeks before your baby is due, your SMP will start the day following the first complete day you become sick. If you are sick with a non-pregnancy related illness, you can claim Statutory Sick Pay (SSP) until the week the baby is due or until the date you have chosen your SMP to start.
For more information on Statutory Sick Pay, see Benefits for people who are sick or disabled.
How much is SMP
For the first six weeks of maternity leave, SMP is paid at 90% of your average gross weekly earnings (that is, before tax and National Insurance contributions are deducted). For the remaining weeks, it is paid at 90 per cent of your gross weekly earnings or £138.18 a week, whichever is lower.
How to claim SMP
To claim SMP, you must tell your employer, 28 days before you decide to start maternity leave, that you are pregnant and will be off work because of the birth. Your employer will want to see a medical certificate (a MATB1) and you must get one and show it to your employer.
How SMP is paid
SMP is paid by your employer in the same way and at the same time as your wages are normally paid, for example, weekly or monthly. Your employer then claims the money back from the government.
If your employer refuses to pay SMP
If your employer refuses to pay SMP, you can complain to HM Revenue and Customs which will decide whether or not you should be getting SMP.
This is complicated and if you are in this position will need the help of an experienced adviser, for example, at a Citizens Advice Bureau. To search for details of your nearest CAB, including those that can give advice by e-mail, click on nearest CAB.
What happens to your SMP if you stop working for your employer?
Provided you worked for your employer during the qualifying week, you will still be entitled to SMP and will continue to be entitled to SMP if you leave work or your job ends. SMP should be paid during your maternity pay period, provided you meet the usual employment and earnings tests – see under the heading Who can claim SMP?
You will continue to be entitled to SMP even if you have no intention of returning to work after your child is born, or if your employer goes out of business. There is an exception if you go to work for another employer after your baby is born but before the end of your maternity pay period.
Your employer cannot try to recover any SMP paid to you if you decide not to return to work after your maternity leave.
SMP and dismissal for pregnancy
If you are dismissed for a reason to do with your pregnancy and/or childbirth, this will be discrimination because of your pregnancy or maternity leave, irrespective of how long you have worked for your employer or the number of hours you work. It will also be an automatically unfairly dismissal.
For example, if you have been working on a fixed-term contract and your employer does not renew your contract, you need to look at the reasons why it is not renewed, especially if it ends ended earlier than the current end date. If there is no longer a need for you to do the work, for example because the project has ended, you are redundant, and if you have two years' continuous service with the employer, you will be entitled to a redundancy payment. However, if the job still exists, and your contract is not renewed because of your pregnancy or maternity leave, your dismissal will be discriminatory and automatically unfair.
If you qualify for SMP but are dismissed because of pregnancy before the beginning of the 14th week before your baby is due, you will still remain entitled to SMP.
Other help on SMP
You can find a very useful factsheet about maternity pay on the Maternity Action website at www.maternityaction.org.uk.
Contractual maternity pay
You may have both contractual rights and statutory rights to maternity pay. Contractual rights will usually be better than statutory rights. If they are not, you can ignore your contractual rights and rely on your statutory rights.
You will need to look at your contract of employment to find out what your contractual rights are to maternity pay.
If you are in one of the groups who does not qualify for statutory maternity rights, you may still be entitled to contractual maternity rights. See under heading Workers who do not have statutory maternity rights for a list of women who do not qualify for statutory maternity rights.
If you are a woman who thinks she has contractual maternity rights but you are not sure how to enforce them, or if you are not sure what your contractual maternity rights are, you should speak to an experienced adviser, for example, at a Citizens Advice Bureau. To search for details of your nearest CAB, including those that can give advice by e-mail, click on nearest CAB.
You can claim Working Tax Credit or Child Tax Credit if you are receiving Statutory Maternity Pay or Maternity Allowance. You can claim Child Tax Credit if you already have a child, or once the new baby is born if it is your first child.
For more information about tax credits, see Problems with benefits and tax credits.
If you do not qualify for Statutory Maternity Pay, you may be entitled to Maternity Allowance which is a benefit paid by the Department of Work and Pensions.
For information about Maternity Allowance, see Benefits for families and children.
If you are on maternity leave you may be able to claim Income Support if your income is below income support level. This may apply even if you are getting Statutory Maternity Pay or Maternity Allowance.
For information, see Help for people on a low income - Income Support.
If you are entitled to Income Support you may also be entitled to a lump sum payment for maternity needs from the social fund.
For information, see Help for people on a low income - the Social Fund.
Department for Business, Innovation and Skills
Employees and employers can find more information about their rights and responsibilities on the Department for Business, Innovation and Skills (BIS) website at www.bis.gov.uk.
Department for Employment and Learning (Northern Ireland only)
In Northern Ireland, employees and employers can find more information about their rights and responsibilities on the Department for Employment and Learning (DEL) website at www.delni.gov.uk.
Employees and employers can contact Maternity Action for more information about their rights and responsibilities. You can call a helpline that gives advice and information about rights and entitlements during pregnancy, maternity leave and returning to work. There are also free factsheets you can download from their website.
Telephone: 0845 600 8533 (Wednesday: 3pm – 7pm; Thursday: 3pm – 7pm; Friday: 10am – 2pm).
Working Families helps parents and employers find a better balance between home and work life. It provides fact sheets and advice on family-friendly rights and runs a helpline for families on low incomes providing advice on legal rights, benefits and working family-friendly hours.
1 Addington Square
Rights of Women (England and Wales only)
Rights of Women is a women's voluntary organisation committed to informing, educating and empowering women about their legal rights. It has free confidential advice lines that gives specialist advice in family law, divorce, relationship breakdown, children and contact issues, domestic and sexual violence, discrimination and lesbian parenting.
52-54 Featherstone Street
Telephone: 0207 251 6575 (admin only)
Textphone: 0207 490 2562
Family law advice line: 020 7251 6577 (Monday, Tuesday, Wednesday and Thursday 7pm-9pm; Friday 12 noon-2pm)
Criminal law advice line: 020 7251 8887 (Tuesday 11am-1pm)
Immigration and asylum law advice line: 020 7490 7689 (Monday 12 noon-3pm; Thursday 10am-1pm)
Ascent advice line for women and advisors in London
Family law advice line: 020 7608 1137 (Monday 11am-1pm, Tuesday and Wednesday 2pm-4pm)
Criminal law and sexual violance advice line: 020 7608 1137 (Thursday 2pm-4pm)
Equality Advisory Support Service (EASS)
England, Wales and Scotland
If you have experienced discrimination, you can get help from the EASS discrimination helpline.
Equality and Human Rights Commission
Advice on pregnancy and maternity rights is also available on the website of the Equality and Human Rights Commission at: www.equalityhumanrights.com.
Equality Commission for Northern Ireland
In Northern Ireland, advice on pregnancy and maternity rights is available on the Equality Commission for Northern Ireland's website at www.equalityni.org.