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Changes to ante-natal rights today – are you up to speed?

Changes to ante-natal rights today – are you up to speed?

Today, 1 October 2014, several employment law changes take place (see further below).  In this alert we consider one of those changes – the extension of the right to time off to attend ante-natal appointments.

What’s changing? The right to accompany a partner to prenatal appointments

From today, the Children and Families Act 2014 will amend the Employment Rights Act 1996, to create a new right for employees and eligible agency workers to take unpaid time off work to accompany their pregnant partner to two ante-natal appointments.  The Government’s aim is to encourage “shared parenting from the very start.”

To date only pregnant employees and eligible pregnant agency workers have had  a statutory right to paid time off during working hours for the purpose of receiving ante-natal care, regardless of their length of service or number of hours worked.  The right is now being extended to employees and eligible agency workers who accompany their pregnant partner albeit that this time off will be unpaid.

Who will qualify for this new right?

The right applies to an employee or eligible agency worker who has a “qualifying relationship with a pregnant woman or her expected child” which includes:

  • a husband or civil partner of the pregnant woman;
  • a person who lives with the woman (whether in a heterosexual or same-sex relationship) in an enduring family relationship (but is not a relative of the woman);
  • the father of the expected child;
  • one of a same-sex couple who is to be treated as the child’s other parent under the assisted reproduction provisions of the Human Fertilisation and Embryology Act 2008 (HFEA 2008);
  • the potential applicant for a parental order under section 54 of the HFEA 2008 in relation to a child who is expected to be born to a surrogate mother.

There is no qualifying period of employment for this right for employees (although eligible agency workers should have completed their 12-week qualifying period).

What is the extent of the right?

The right entitles the qualifying individual to attend two ante-natal appointments during working hours, of not more than six and a half hours each (although employers are free to offer more time).  Ante-natal appointments are those which are made on the advice of a medical practitioner, registered midwife or registered nurse.

There is no right for the individual to be paid for the time taken off, so any payment will be discretionary or contractually agreed (although it is likely that many employers will decide to pay individuals their normal pay during their absence).

Can the employer request any documentation?

An employer, temporary work agency or hirer can request evidence from the employee/agency worker which confirms that:

  • the employee or agency worker has a qualifying relationship with the pregnancy woman or expected child;
  • the purpose of taking the time off is to attend an antenatal appointment;
  • the appointment has been made on the advice of a registered doctor, registered midwife or registered nurse;
  • the date and time of the appointment.

Can an employer refuse to allow the time off?

An employer, temporary work agency or hirer may refuse an employee or agency worker time off to accompany a woman to an antenatal appointment where it is reasonable for it to do so.  However, there is no further guidance as to when it would be reasonable to refuse any such request.

What remedies are there for an individual if an employer fails to allow them time off?

If an employer unreasonably refuses to allow an employee or agency worker to take time off, the individual can make a complaint to an Employment Tribunal.  The complaint typically needs to be presented within 3 months beginning with the day of the appointment, subject to the rules on mandatory early conciliation.  If successful, an employee or agency worker can be awarded twice their hourly rate of pay for the period when they would have been entitled to be absent had the time off not been refused.  In respect of agency workers, the liability of the temporary work agency and the hirer is to be apportioned in a way which is just and equitable having regard to the extent of their responsibility for the infringement of the agency worker’s right.

Employees and agency workers will be protected from being subjected to a detriment for taking time off to accompany a pregnant woman to an antenatal appointment.  It will also be an automatically unfair dismissal where the principal  reason for an employee’s dismissal is that they took time off to accompany a woman to an antenatal appointment.

What steps as an employer do I now need to take?

  • Update your maternity/ante-natal policies.  This is also an opportune time to check that your other family-friendly policies are up to date.
  • Consider whether you will request evidence from employees and eligible agency workers who want to accompany their pregnant partner.  Whatever approach you adopt, ensure that you are consistent in your treatment of individuals to avoid claims of less favourable treatment.
  • Review the Department for Business Innovation & Skills’ Employer Guidance, which helpfully contains a number of Frequently Asked Questions.
  • Finally, bear in mind that a new system of shared parental leave  will also be available to parents of children born or placed for adoption with them on or after April 2015. Employers should be considering now how they will administer this new right and the changes required to their family friendly policies (see our previous news alert on this scheme here).

And finally…

Other key changes taking place today include (but are not limited to):

  • An increase in the national minimum wage rate (the standard adult rate will rise by 3% to £6.50 an hour).
  • Employment Tribunals will be obliged to order employers found to be in breach of equal pay law to carry out equal pay audits (for further information see the Equality Act 2010 (Equal Pay Audits) Regulations 2014).