Right to leave under employment law

Do you know your full employment rights to holidays and leaves?
Here is a complete guide to all possible leaves you may be entitled to.

Introduction

Do you know your full employment rights to holidays and leaves? Here is a complete guide to all possible leaves you may be entitled to.

This chapter includes:

  • Maternity Leave
  • Maternity Leave
  • and Annual
  • Holiday Leave
  • Employer Breach
  • Statutory
  • Maternity Pay (SMP)
  • Parental Leave
  • Purpose of the Leave
  • Ordinary Paternity Leave (OPL) 
  • OPL Notice

 

  • Additional Paternity Leave (APL)
  • Eligibility Criteria for (APL)
  • Shared Paternal Leave and Pay
  • Statutory Paternity Pay (SPP)
  • Eligibility to receive Ordinary Statutory Paternity Pay (OSPP)
  • Notice and Evidential Requirement for an (OSPP)
  • Eligibility to receive Additional Statutory Paternity Pay (ASPP)
  • Notice and Evidential Requirement for an ASPP
  • Adoption Leave and Pay
  • Other Available Leaves

Maternity Leave

There are two types of Maternity Leaves:

  1. Ordinary Maternity Leave (OML): which is 26 weeks of statutory leave available for the employee who gives birth, regardless of the length of the time that they have been working for. Remember that:
    1. Note: The statutory maternity pay (SMP) depends on the salary and the duration of employment.
  2. Additional Maternity Leave (AML): Which is 26 weeks further to the Ordinary Leave (OML).

 

During these leaves, the employee shall benefit from all the contractual work offered by the employer except to remuneration.

Example

Lisa has requested 26 weeks as a maternity leave. As part of her employment contract, the car she uses is under remuneration and for business use only. Lisa is not allowed to use the company car without a specific request to her employer.

Maternity Leave and Annual Holiday Leave

The annual holiday leave entitlement continues to accrue during OML and AML. In addition, if the annual holiday could not be taken due to Maternity Leave, the employee has the right to carry over unused holiday entitlement to the next holiday year.

Employer’s Breach

An employer who refuses or deprives an employee of any contractual or other related benefits due to Maternity leave could be subjected to:

  • Breach of employment contract
  • Unfair dismissal
  • Claim for pregnancy and maternity discrimination.

Statutory Maternity Pay (SMP)

An employee would be entitled to such pay:

  • If they were employed for at least 26 weeks by the end of the Qualifying Week (or the 15th weeks before childbirth).
  • Their weekly normal earnings are not less than the Lower Earnings Limit (LEL)
  • There are pregnant 11 weeks before the expected week of childbirth or has already given birth.
  • They gave the employer a 28-day notice of when the Statutory Maternity Pay (SMP) would start.
  • Submitted a certificate confirming the expected week of childbirth (MAT B1 form)
  • They ceased work

The payment is calculated by finding the relevant period for the last normal payday on or before the end of the Qualifying Week and begins after the last normal payday at least eight weeks earlier.

  • If the employee is paid monthly:
    • The reference period should be two months and the earnings should be the last two pay slips on or before the end of the Qualifying Week.
    • Divide the total earnings by the number of months.
    • Multiply that figure by 12 to get a year’s pay.
    • Divide by 52 to arrive at normal weekly earnings.
  • If the employee is paid weekly:
    • The reference period should be eight weeks and the earnings should be the last eight pay slips on or before the end of the Qualifying Week.
    • Divide the total earnings by the number of weeks to arrive at normal weekly earnings.

Example

Lisa was on maternity leave when she decided to resign from her job. Lisa still qualifies and is entitled to a Statutory Maternity Pay, which will end before the end of the SMP period.

Example 2

Lisa came back to work before the end of her SMP period as she felt healthy and ready to go back. Unfortunately, she fell ill 2 days after, taking by that a sick leave. Lisa is still subjected to a statutory maternity payment as long as she is still within the period.

Please see our related articles regarding the legal definition of “employer”, “employee”, “unfair dismissal” and more.

Parental Leave

It is an additional statutory unpaid leave available to some working parents in addition to statutory maternity.

 

It is available to birth and adoptive parents and anyone who has or expected to have a parental responsibility. An employee is entitled to:

  • 18 unpaid weeks if they have on the qualifying child (under the age of 18); or
  • 36 unpaid weeks if they have two qualify children.

 

Such leave and benefits are subject to the individual containing employee’s contract.

Purpose of the Leave

An employee is qualified for a Parental Leave only for the purpose of “Caring for a child” such as but not limited to:

  • Spending more time with children, or
  • Looking for new schools.

 

Please note the period allowed for such leave has changed in 2015 to:

  • Children born on or after December 15th 1999 – period for the leave is valid till the child’s 5th
  • Children adopted on or after December 15th 1999 – Period for the leave is valid till the fifth anniversary of the date of placement or the child’s 18th birthday if sooner.
  • Child entitled to disability living allowance – Period for the leave is up to the child’s 18th

 

Ordinary Paternity Leave (OPL)

An employee, who has been employed for not less than 26 weeks ending with 14th week before the Expected Week of Childbirth, is allowed to take one whole week to two weeks’ leave within 56 days of a child’s birth or placement for adoption. The purpose of such leave is to:

  • Care for the child, or/and
  • Help the child’s mother or adopter.

 

Note that the Ordinary Paternity Leave is not available if the employee has taken any Shared Parental Leave (SPL) for the birth or adoption of the child.

 

OPL Notice

The Ordinary Paternity Leave notice for the birth of a child must contain the following and submitted to the employer:

  • The Expected Week of Childbirth, and
  • The length of the OPL intended to be taken, and
  • The day of the OPL to start.

 

The Ordinary Paternity Leave notice for the adoption of a child must contain the following and submitted to the employer:

  • The date on which the adopter was notified of having been matched with the child, and
  • The date on which the child is expected to be placed with the adopter, and
  • The length of the OPL intended to be taken, and
  • The day of the OPL to start.

 

Note during the leave period employees are entitled to benefit from their usual contractual terms except terms relating to remuneration.

Additional Paternity Leave (APL)

A statutory regulation allows employees who are related to the birth or adopted child in being the biological father, spouse, or partner. To care for the child to take:

  • A minimum of 2 weeks
  • A maximum of 26 weeks

Only within the window of 20 days after the child was born or adopted and ending 12 months after the initial date.

 

Eligibility Criteria

  • Have been employed for a continuing 26 weeks,
  • Be the father or married to the child’s mother,
  • Must give 8 weeks’ notice,
  • Signed employee declaration of the purpose of the APL,
  • A written declaration from the mother’s child confirming information and birth date.

Shared Paternal Leave and Pay

It is an optional statutory share of the Paternal leave and the pay with your partner who’s also an employee:

  • Up to 50 weeks of shared leave
  • Up to 37 weeks of shared pay
  • Could be taken all at once, or blocks separated by periods of work.

Note: the criteria may vary according to the individual employment contract and in case of adoption. Please make sure to check with your solicitor.

Example

Lisa is having given birth recently, Tom her husband, is considering taking a shared parental leave and pay to help her out. Lisa must have been working for at least 26 weeks (not necessarily in a row) and earned not less than £390. Tom must have been employed continuously by the same employer for at least 26, and earned on average at least £116 a week.

Statutory Paternity Pay (SPP)

If you are eligible for an Ordinary Paternity Leave (OPL) or an Additional Paternity Leave (APL) you may be entitled to an Ordinary Statutory Paternity Pay (OSPP), or an Additional Statutory Paternity Pay (ASPP) respectively.

Eligibility to receive Ordinary Statutory Paternity Pay (OSPP)

To be eligible to receive OSPP, an employee must:

 

  • Be the newborn child and the child’s mother; or
  • in adoption cases, the employee must be the person with whom the child is placed for adoption.
  • Have been in employed for a continuous period of at least 26 weeks ending with the 14th week before the Expected Week of Childbirth (EWC) and ending with the day on which the child is born or placed for adoption.
  • Have received normal weekly earnings for the period of eight weeks ending with the relevant week that are not less than the lower earnings limit.

Notice and Evidential Requirement for an OSPP

The employee must submit the following to the employer before going on an OPL and request an OSPP:

  • 28 days’ notice in writing to the employer, and
  • Information regarding their name, EWC, with the OSPP will begin, and the OPL period.

Note: the criteria may vary according to the individual employment contract and if it was to be an adoption. Please make sure to check with your solicitor.

Eligibility to receive Additional Statutory Paternity Pay (ASPP)

For a father or a partner to be eligible for an ASPP, the mother must be entitled to a maternity allowance. And must have returned to work with at least two weeks of their pay period remaining.

 

To be eligible to receive ASPP, an employee must:

  • Be in a relationship with the child’s mother; or
  • in adoption cases, the person with whom the child is placed for adoption.
  • Have been with the same employer for a continuous period of at least 26 weeks ending with the 14th week from EWC;
  • Have received normal weekly earnings for the period of eight weeks not less than the lower earnings limit in force.
  • Be taking APL in order to care for the child during the ASPP period.
  • The child is at least 20 weeks old.

 

In addition, the child’s mother or adopter must also satisfy certain criteria:

  • They must have been entitled to statutory maternity or adoption pay as a result of the child’s birth or adoption.
  • They must be treated as having returned to work on a date which falls after the end of a prescribed period beginning with the birth or adoption of the child but at least two weeks before the end of their statutory maternity or adoption pay period.

Notice and Evidential Requirement for an ASPP

The employee must submit the following to the employer before going on an APL and request an ASPP:

  • 8 weeks’ notice in writing to the employer, and
  • Information regarding their name, EWC, with the OSPP will begin, and the OPL period.
  • The employer is allowed to view a copy of the child’s birth certificate.

Adoption Leave and Pay

Adoption may be undertaken by single people, married couples, civil partners, same-sex couples and unmarried couples. The availability of statutory adoption leave (SAL) and statutory adoption pay (SAP) depends on an employee. It includes both:

  • Foster parents; and
  • Parents of a child born to a surrogate.

 

Rights available to an adopter or a Parent A in a surrogacy:

  • Up to 52 weeks’ statutory adoption leave (SAL), split into 26 weeks’ ordinary adoption leave (OAL) and 26 weeks’ additional adoption leave (AAL).
  • Statutory Adoption Pay (SAP) for up to 39 weeks.
  • Protection from detriment or dismissal relating to adoption leave.
  • Priority to be offered suitable alternative employment if redundancy occurs during the leave.

Other Available Leaves

The Adopter’s partner or spouse may be entitled to take:

  • Either one whole week or two consecutive weeks’ ordinary paternity leave within 56 days of their child’s placement for adoption.
  • Additional paternity leave (APL), if the child was placed with the adopter before 5 April 2015 and the adopter goes back to work without taking their whole entitlement to Statutory Adoption Leave.

Note: Additional Paternity Leave (APL) is not available in surrogacy cases.

Disclaimer

While every effort has been made to ensure the accuracy of the information provided in this article, it does not constitute legal advice and cannot be relied upon as such. Each legal case and issue may have unique facts and circumstances, as a result legalally does not accept any responsibility for liabilities arising as a result of reliance upon the information provided. For further help and guidance, you can always rely on and seek advice from our experienced lawyers.