For many years, pregnant women who are employees (or agency workers) have had the right to take time off work to attend ante-natal appointments. On 1 October 2014 that right will be extended to other expectant parents, including fathers, the mother’s partner and intended parents through surrogacy.  In this note we look at how and to whom the new rights apply.

Who is entitled to time off?

The right to time off will apply to any employee, regardless of length of service, who is either:

  • the pregnant woman's spouse or civil partner;
  • living with the pregnant woman in an enduring family relationship but not a relative (ie not a parent, grandparent, sibling or uncle/aunt);
  • the father of the expected child;
  • the intended parent of a child in a surrogacy arrangement, if they expect to be entitled to and intend to apply for a parental order in respect of that child.

Agency workers who are not employees of the agency will also have the right to time off, provided they satisfy certain criteria (which, in a nutshell, mean they must have been doing the same kind of job for the same hirer for at least 12 weeks).

How much time off?

The employee or agency worker can take time off work on two occasions, with each absence lasting no more than six and a half hours. An employer can, of course, agree additional time off if it wishes to do so.

Purpose and evidence of eligibility for time off

The new right is a right to be allowed time off to accompany a pregnant woman when she attends an appointment for the purpose of receiving ante-natal care. The appointment must have been made on the advice of a registered medical practitioner, registered midwife or registered nurse.

An employer (or in the case of an agency worker, their hirer or agency) can ask the employee or agency worker for a signed declaration confirming that these conditions are satisfied.  The declaration must also state the date and time of the appointment and that the employee or agency worker has a qualifying relationship with the pregnant woman or expected child.

Paid or unpaid?

The new right is to be allowed unpaid time off.  There is no right for an employee or agency worker to be paid during their absence.  This contrasts with the rights of pregnant women, who are entitled to paid time off.

Remedies

If an employee or agency worker is unreasonably refused time off then a Tribunal can award compensation at the rate of twice the hourly rate for the period when the employee or agency worker would have been entitled to be absent, had time off been granted. In the case of agency workers, the Tribunal will split liability between the agency and hirer depending on the extent to which each was at fault.

The fact that there is a remedy only for an ‘unreasonable’ refusal to permit time off suggests that employers do have the right to refuse time off where it is reasonable to do so. However, as there is no guidance from case law as to when it might be reasonable to refuse permission for time off, employers must tread carefully.

An employee/agency worker can also claim compensation if he or she is subjected to a detriment for taking or seeking to take time off.  Any dismissal of an employee for taking, or seeking to, take time off will be treated, automatically, as an unfair dismissal.

Additional rights for adopters

From next April, proposed adopters will be able to take time off work to attend pre-adoption meetings. We will publish a briefing on that development, and other changes to adoption leave rights, when full detail of the legislation is available.

Please click here for the government guidance.