Employment - In Wales

This information applies to England, Wales, Scotland and Northern Ireland

Rights of working parents

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.

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Paternity leave

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 some responsibility for the child's upbringing; 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 some responsibility for the child's upbringing
• 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.

Further information about paternity leave

The website of the Department for Business, Enterprise and Regulatory Reform (BERR) has more information about paternity leave. Go to www.berr.gov.uk. The Directgov TIGER website at www.directgov.gov.uk can help you calculate paternity leave and pay.

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 edads@workingfamilies.org.uk.

For more information in England, Wales and Scotland about paternity leave and paternity pay, see Rights of working fathers in Employment fact sheets.

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Adoption leave

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.

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 £117.18 a week, or 90 per cent of your normal weekly earnings, whichever is lower. This figure is correct if you start your adoption leave on or after 1 April 2008. The amount is different if you started your leave before then. You get SAP for 39 weeks.

How long you can get SAP depends on when the child is adopted. If the child is expected to be placed with you for adoption before 1 April 2007, you'll get SAP for 26 weeks. If the child is expected to be placed with you for adoption on or after 1 April 2007, you'll 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.

The website of the Department for Business, Enterprise and Regulatory Reform (BERR) has more information about adoption leave. Go to www.berr.gov.uk. The Directgov TIGER website at www.directgov.gov.uk can help you calculate adoption leave and pay.

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The right to ask for flexible working

If you are the parent of a child under six (or under 18 if your child is disabled), you have the right to ask to work flexibly. 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 at least 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 sex 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 Directgov website at: www.direct.gov.uk/en/Employment. Directgov has an interactive tool which can help you work out the rights and options for your own particular circumstances.

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Maternity rights

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 unfair dismissal if dismissed because of pregnancy (see under heading Dismissal or unfair treatment because of pregnancy)
• if the baby has a due date on or after 1 April 2007, 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.

If your baby had a due date before 1 April 2007, some of your maternity rights will be different. You will have different rights to the amount of maternity leave you can take and how much SMP you may be able to get.

If you want to find out about your maternity rights for a baby which had a due date before 1 April 2007, 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.

For more information about maternity leave and your right to return to work, see Maternity leave.

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Extra rights given by the contract of employment

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.

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Workers who do not have statutory maternity rights

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.

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Time off for ante-natal care

Who qualifies

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 or incapacity benefit.

For more information on statutory sick pay and incapacity benefit, see Benefits for people who are sick or disabled.

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 BERR leaflet, Fathers-to-be and ante-natal appointments – a good practice guide, on the website of the Department for Business, Enterprise and Regulatory Reform (BERR)at: www.berr.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.

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Right to work in a safe environment

An employer is under 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.

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Dismissal or unfair treatment because of pregnancy

Unfair dismissal

If you are dismissed because of pregnancy, you can make a claim for unfair dismissal and sex discrimination 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 automatically unfair to dismiss a woman because she is pregnant.

For more information about unfair dismissal, see Dismissal.

Unfair treatment and sex discrimination

If you are unfairly treated (suffer detriment) in connection with your pregnancy or maternity, for example, you are passed over for promotion, you should follow the special three-step grievance procedure which all employers are required to have by law. This means you must:

1. send your employer a written statement, setting out your grievance, and give them at least 28 days to respond
2. meet with your employer to discuss your grievance
3. appeal against your employer's decision if you are not happy with it.

If you have followed this procedure and are still not happy with the outcome, you can take your case to an employment tribunal (Industrial Tribunal in Northern Ireland). You should make a claim for both unfair treatment because of pregnancy/maternity, and sex discrimination. You should bear in mind that if you haven't followed the grievance procedure properly first, the employment tribunal may decide to reduce any compensation it awards you.

There are some circumstances in which you do not have to follow the grievance procedure before taking your case to an employment tribunal. To find out what these are, and for more information about raising a grievance with your employer, see Dealing with grievances, dismissal and disciplinary action at work.

For more information about sex discrimination, 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.

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Maternity leave

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.

If your baby had a due date before 1 April 2007, you will have different rights to the amount of maternity leave you can take.

If you want to find out about your maternity rights for a baby which had a due date before 1 April 2007, 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.

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Maternity Pay

Statutory Maternity Pay (SMP)

Who can claim

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 5 May 2008 (expected week of childbirth), 15 weeks before that is week beginning 21 January 2008 (the qualifying week), and 26 weeks before the qualifying week is the week beginning 23 July 2007. So you would have to have started work on or before 23 July 2007 in order to qualify for SMP if your baby is due in the week of 5 May 2008; 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 your average earnings in the eight weeks up to the 14th week before your baby is due.

For more about national insurance and the lower earnings limit, see National Insurance – contributions and benefits.

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.

However, if your baby had a due date before 1 April 2007, you will have different rights to SMP. You should get advice from an experienced adviser.

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 six weeks before your baby is due, your SMP will start the week following the week 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.

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% of your gross weekly earnings or £117.18 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.

SMP and dismissal for pregnancy

If you qualify for SMP but are dismissed because of pregnancy (see under heading Dismissal or unfair treatment because of pregnancy) before the beginning of the 14th week before your baby is due, you will still remain entitled to SMP.

SMP and returning to work

The right to SMP does not depend on going back to work. You will still receive it, even if you don't go back. You won't have to pay back any SMP if you don't return to work.

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.

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Tax credits

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.

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Social security benefits

Maternity Allowance

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.

Income Support

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.

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Further information

Useful leaflets about maternity rights are available on the website of the Department of Business, Enterprise and Regulatory Reform (DBERR). The website is www.berr.gov.uk. Some leaflets are available in certain community languages. There is also a version for employers. Go to their website at www.berr.gov.uk.

The Directgov TIGER website at www.direct.gov.uk can help you calculate maternity and paternity leave.

Further advice on pregnancy and maternity rights is available on website of the the Equality and Human Rights Commission Commission at: www.equalityhumanrights.com.

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