Regulations which came into force in December 1999 introduce new statutory parental leave entitlements for UK employees. We highlight the key points of the regulations, and of related legislative provisions governing time off work for family emergencies which were brought into effect at the same time.
The Maternity and Parental Leave Regulations 1999 were laid before parliament on 4 November and took effect on 15 December 1999. The regulations introduce a right to parental leave, based on Council Directive 96/34/EC (TN9801201S), and improve existing maternity leave arrangements. The provisions of the Employment Relations Act 1999 on time off in the event of emergencies involving family and other dependants, which also reflect the Directive, came into force on the same date (UK9905103F).
Key points of the regulations
Parental leave
Under the regulations, working parents in the UK will for the first time have the statutory right to take up to 13 weeks' unpaid leave over the first five years of a child's life, where the child is born on or after 15 December 1999. Parents adopting a child will be entitled to the same amount of leave over the five years following adoption.
In a change to the original proposals (UK9908123N), parents of disabled children born after the regulations came into force will be able to use their entitlement of 13 weeks' leave up until the child's 18th birthday. According to the Department of Trade and Industry, a number of organisations - including the Trades Union Congress (TUC) and the Equal Opportunities Commission- suggested amendments to the draft regulations to help parents of disabled children cope with the extra demands they face.
The entitlement to parental leave is restricted to employees with at least one year's service with their employer. Employees will remain employed while on parental leave. Though the leave is unpaid, other contractual terms, such as those relating to notice of termination and redundancy payments, will still apply. At the end of parental leave, an employee is guaranteed the right to return to the same job as before or, if that is not practicable, a similar job which has the same or better status, terms and conditions as the old job. Where the leave is taken for a period of four weeks or less, the employee will be entitled to go back to the same job.
The regulations provide that employers and employees may make their own agreements on parental leave provision which may improve upon, but not fall short of, the elements outlined above. In the absence of such an agreement, a statutory "fallback" scheme set out by the regulations will apply. This will enable employees to take up to a maximum of four weeks' parental leave in a year in blocks or multiples of one week, after giving 21 days' notice. Employers may postpone the leave for up to six months where the employee's absence would unduly disrupt the operation of the business, except where the employee gives notice to take it immediately after the time the child is born or is placed with the family for adoption. Parents of disabled children will have the flexibility to take leave a day at a time or for longer periods if they wish.
Parental leave provision agreed between employers and employees may take the form of collective agreements with trade unions, "workforce agreements" with elected employee representatives (UK9810154F), or individual agreements. Intended to provide flexibility, such agreements enable the details of parental leave arrangements to reflect the needs and preferences of the parties concerned. Enterprise-specific schemes may, for example, allow leave to be taken in days, weeks, all at once or as reduced working hours - or a mixture of all these. Agreements can also cover matters such as how much notice of parental leave must be given and the circumstances in which employers may seek to postpone it. Where parental leave arrangements are agreed with individuals, it will always be open to the individual to exercise his or her rights under any part of the regulations, including the fallback scheme, if these are better in any particular respect.
Employees will have the right to complain to an employment tribunal if the employer prevents or attempts to prevent them from taking parental leave. If the tribunal upholds the complaint, it may order the employer to compensate the employee. An employee who takes parental leave will also be protected from victimisation, including dismissal, for taking it.
Maternity rights
The regulations increase ordinary maternity leave from 14 to 18 weeks (ie in line with statutory maternity pay) and reduce the qualifying period for additional maternity leave from two years to one year (enabling mothers who qualify to extend their maternity leave until 29 weeks after the birth of their baby). The regulations simplify the procedures for giving notice of taking maternity leave and the arrangements for their return to work, and also make it clear that contracts of employment continue during additional maternity leave. The maternity leave changes will apply to women expecting babies on or after 30 April 2000.
Time off for dependants
The provisions of the Employment Relations Act 1999 (UK9912145F) on time off work to deal with emergencies involving family and other dependants were also brought into effect on 15 December 1999 to comply with the EU parental leave Directive. All employees now have the statutory right to take "a reasonable amount of time off" to "take action which is necessary":
- to provide assistance when a dependant falls ill, gives birth or is injured or assaulted;
- to make care arrangements for a dependant who is ill or injured;
- in consequence of the death of a dependant;
- because of the unexpected disruption of care arrangements for a dependant; or
- to deal with an incident involving the employee's child during school hours.
A dependant is the spouse, child or parent of the employee, or someone who lives with the employee as part of their family. In cases of illness, injury or where care arrangements break down, a dependant may also be someone who reasonably relies on the employee for assistance.
There is no set limit to the amount of time off which can be taken. What is reasonable will depend on individual circumstances. Employees are required to tell their employer as soon as reasonably practicable why and for how long they expect to be away from work. Where employees consider they have been unreasonably refused time off by their employer, or victimised for taking it, they may complain to an employment tribunal. This may result in an award of compensation to be paid by the employer to the employee. There is no statutory requirement for the time off to be paid. The issue of payment will depend on the contractual arrangements between employer and employee, or the employer's discretion.
Commentary
Following consultation on draft regulations issued in summer 1999 (UK9908123N), the government has incorporated a number of changes to its original parental leave proposals but small business organisations, trade unions and other groups are still critical of some aspects of the regulations. The British Chambers of Commerce have expressed concerned that small firms will find it difficult to accommodate the absence of key members of staff taking parental leave for more than two weeks at a time. The Confederation of British Industry had pressed for the four-week limit incorporated in the final version of the regulations. While welcoming the regulations as a "historic milestone on the road to making work family-friendly", the TUC reiterated its support for parental leave to be paid (UK9903192N), and expressed disappointment that the statutory fallback scheme would restrict parents to taking leave in blocks of at least one week, preferring greater flexibility.
The TUC also questions whether restricting the statutory entitlement to parental leave to the parents of children born or adopted on or after 15 December 1999 is consistent with the Directive. A complaint by the Irish Congress of Trade Unions about a similar provision in the Irish parental leave legislation (IE9806251N) is thought likely to result in infringement proceedings against Ireland being instituted by the European Commission. The outcome of this process could have important implications for the UK parental leave regulations. (Mark Hall, IRRU)