Parental leave at a glance

first_imgRelated posts:No related photos. Comments are closed. The new parental leave legislation is a major concern to businesses whichfear the disruption it could cause. Law firm Wragge & Co outlines the keyissuesWhat is parental leave?It is the individual right of a female or male employee to take up to 13weeks’ unpaid leave on grounds of the birth or adoption of a child. Leave mustbe taken to care for the child.How will parental leave work?The key elements will apply to everyone. It will be possible for employeesand employers to agree schemes between themselves. If a scheme is not agreed,the terms of a default scheme will automatically apply.When did it come into force?Employees who satisfy the qualifying requirements had a right to parentalleave from 15 December 1999.Who has right to Parental Leave?An employee has the right to parental leave if they have one year’scontinuous service, and; is the parent of a child born after 15 December 1999who is under five years old, or is the parent of a disabled child born after 15December 1999 who is under 18 years old, or has adopted a child under the ageof 18 after 15 December 1999. The entitlement to parental leave lasts for fiveyears from the date on which the child is placed for adoption or until thechild’s 18th birthday – whichever is first.Restricting the right to children born after a certain date may lead toproblems. The Irish government is currently under attack in the European Courtfor using a similar rule. The argument is that it has failed properly toimplement the European directive on parental leave. If the challenge succeeds,we may see the UK government coming under similar attack.Key elementsThe elements below apply to everyone. Employers cannot opt out.Period The amount of parental leave must be at least 13 weeks foreach child.Pay The employee will not have a right to be paid during parentalleave.Terms and conditions During the leave period, the following terms ofemployment will still apply: implied duty of trust and confidence; implied dutyof good faith; and terms and conditions, if any, relating to:• Contractual notice.• Redundancy terms.• Disciplinary and grievance procedures.• Confidentiality terms.• Exclusivity of employment terms.Return to workThe nature of the job to which an employee is entitled to return after leaveperiods depends on the length and timing of their parental leave.Leave four weeks or less The employee must be given their job back atthe end of the leave.Leave greater than four weeks The employee must be given their jobback or, if this is not possible, then a job which is suitable and appropriate.Leave four weeks or less but taken immediately after additional maternityleave (AML) The employee must be given their job back or, if this was notpossible at the end of the AML period and continues to be impossible, then ajob which is suitable and appropriate.Salary on return The employee must be paid a salary equal to thatthey would have been entitled to had they not been absent from work because ofparental leave.Pension and seniority on return Seniority and pension rights built upby an employee before taking leave are retained.The default schemeIf a company has not agreed a parental leave scheme with its employees ortheir representatives, the rules of the default scheme will automaticallyapply. Terms of the default scheme include:Notice The employee will have to give at least 21 days’ notice. Ifrequested, an employee must confirm the age of the child and their relationshipto them.Employer’s right to postpone leave The employer will have the rightto postpone the leave for six months from the date the employee wished to takethe leave. This right arises if the employer’s business would be “undulydisrupted” by the employee’s absence eg seasonal production fluctuations,large order, education sector. The employer must give notice of postponementwithin seven days of the request for leave confirming: the reasons forpostponement; and the period of rescheduled leave.Non-postponable leave Leave cannot be postponed when the employeegives notice to take it immediately after the child is born or adopted.Minimum period of leave Any part of a week which is taken as parentalleave will constitute a whole week. Maximum annual leave period An employee cannot take more than fourweeks’ leave for each child in any year. For these purposes, a year commenceson the date of adoption or birth or the date on which the employee satisfiesthe qualifying condition of one year’s employment.Agreeing a parental leave schemeTerms of the scheme must be agreed with the employee or incorporated intotheir contract of employment through a collective or workforce agreement. If noagreement is in place the terms of the model scheme will apply. Agreements canimprove on the key elements but cannot offer less. Even if an agreement ismade, employees can rely on the default scheme if it is better in a particularrespect.Agreements can cover: notice periods, arrangements for postponing leave andmaximum and minimum periods of leave.Workforce agreement An agreement between an employer and itsemployees or representatives. It must be in writing and must be effective for aspecified period, not exceeding five years. It must apply to the wholeworkforce or a particular group within the workforce. It must be signed by therepresentatives of the workforce or representative of the group. All employeesto whom the agreement apply should be given a copy of the agreement togetherwith a note reasonably describing its terms and effect.Election of employee representative• The employer can determine the number of representatives.• The candidates for election must be members of the workforce or theparticular group at the date of the election.• No employee who is eligible to be a candidate should be unreasonablyprohibited from standing for election.• Every relevant member of the workforce or group at the time of theelection should be entitled to vote.• Each member of the workforce or group may cast as many votes as there arerepresentatives to be elected.• Voting should be in secret and the votes should fairly and accuratelycounted.• Employees should be notified of the result of the ballot as soon asreasonably practicable.Employee objectionIf an employee has suffered detrimental treatment or been unfairly dismissedeither for taking parental leave, refusing to sign a workforce agreement orbeing a workforce representative, they may take their case to an employmenttribunal. 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