Other family rights
PLEASE NOTE: This page is intended to give general information about the law but is not intended as legal advice and you must not rely on it as such, nor is any liability accepted if you do rely on it. The law may change from time to time and we cannot include all elements of the law and its application in this summary. For further advice relating to your circumstances, please contact us.
The following family rights assist employees in balancing and managing their responsibilities to their employer with their responsibilities to those they care for, and also allow them to respond to family emergencies and bereavements:
Time off for dependants
Parental bereavement leave
Time off for dependants
Employees have a right to take a reasonable amount of unpaid time off work in order to take action to deal with a variety of unexpected or sudden events involving a dependant. The right does not apply to planned time off, i.e. to take a dependant to a planned appointment.
The right applies to all employees (with a small number of named exceptions) irrespective of their gender; length of service; whether full or part-time; or under a permanent, temporary or fixed term contract.
Reasonable time off can be taken where it is necessary and where it is:
To provide assistance if a dependant falls ill; gives birth; or is injured or assaulted.
To make arrangements for the provision of care for a dependant who is ill or injured.
In consequence of the death of a dependant.
To deal with the unexpected disruption, termination or breakdown of arrangements for the care of a dependant.
To deal with an unexpected incident which involves the employee’s child during school hours.
A dependant is a spouse, civil partner, child or parent of the employee, or a person who lives in the same household as the employee (excluding tenants, lodgers, boarders and employees). In some limited cases a dependant can also be those who reasonably rely on the employee for assistance/the provision of care.
The amount of time taken off must be reasonable. No maximum amount of time is prescribed and what is reasonable will be determined by the nature of the incident and the employee’s circumstances. However, it has been indicated that the right is not expected to extend beyond a day or two.
An employee can complain to an employment tribunal if they are refused permission to take time off in accordance with their right or if they are subjected to a detriment for taking time off in accordance with their right. An employee who is dismissed for taking time off in accordance with their right will be able to claim unfair dismissal whether or not they have the necessary qualifying service for an ordinary unfair dismissal claim.
Parental leave is only available to employees who have been continuously employed for one year or more (with a small number of named exceptions) and who have, or expect to have, responsibility for a child (e.g. birth parents, adoptive parents, parents under a surrogacy arrangement, and others who have legal parental responsibility for a child, such as guardians).
Eligible employees may take up to a total of 18 weeks’ unpaid parental leave for each child for the purposes of caring for that child, at any time before the child’s 18th birthday. The entitlement is to take 18 weeks’ leave in total in relation to each child and not 18 weeks with each separate employer.
An employee cannot take more than four weeks’ leave in respect of any individual child during any particular year (the period of twelve months beginning on the date the employee first became entitled to take parental leave in respect of the child in question). Employees are not entitled to take parental leave of less than one week or in anything other than multipliers of one week (with a small number of exceptions).
In general, an employee must give their employer at least 21 days’ notice of their intention to take parental leave. Except where an employee wishes to take parental leave immediately on the birth of a child, or on the placement of a child for adoption, an employer is entitled to postpone an employee’s leave where it considers that the operation of its business would otherwise be unduly disrupted.
Employees are entitled to return to the same job (or in certain cases a suitable alternative job) after their parental leave. Employees also accrue statutory holiday entitlement whilst on parental leave and their continuity of service continues to accrue. Provisions relating to pay and other benefits are suspended unless the employee and employer agree otherwise.
Parental leave entitlements can, to some extent, be varied by agreement between an employer and employee. Employers may also have non-statutory parental leave schemes. Above we have set out the default parental leave scheme. The right to parental leave is complex and whether you are an employer or employee, you should obtain advice on the individual circumstances of your case.
An employee can complain to an employment tribunal in relation to a number of offences relating to their parental leave. For example, if they are is subjected to a detriment or dismissed, or if they have a requested period of parental leave unreasonably postponed, or if they are prevented from taking parental leave.
A statutory flexible working request can only be made by employees with at least 26 weeks’ continuous employment at the date the request is made (with a small number of named exceptions). An employee can only make one statutory flexible working request in any 12-month period. A request can be for a permanent or temporary change.
An employee may request a change to their employment terms with respect to the hours they work, the times they are required to work, or where they work (as between their home and any of the employer’s workplaces).
An employee’s application must be in writing and must include certain information. An employer must deal with an employee’s request in a reasonable manner, must notify the employee of its decision within three months of the request (or such longer period as the parties agree), and can only refuse a request on one or more of eight specified grounds.
The ACAS Code suggests that an employer should arrange to talk with an employee as soon as possible after their written request, unless the employer intends to approve the request, in which case a meeting may not be necessary. The ACAS Code also recommends that employers allow employees to be accompanied by a work colleague at any meeting to discuss a request.
The ACAS Code also suggests that an employer may want to use a trial period. If an employer uses a trial period, review points should be set so that the employer and employee can discuss how the arrangements are working. An extension to the three-month decision period is likely to be needed if a trial period is used.
If the employer accepts the request, they must provide a written statement of the change to the employee’s terms and conditions. As is stated above, a request can only be refused on one or more of eight specified grounds. If a request is refused, the ACAS Code recommends that an employee be allowed to appeal against the employer’s decision.
An employee who has made a statutory flexible working request can complain to an employment tribunal on the basis that:
The employer failed to deal with the application in a reasonable manner.
The employer failed to notify the employee of their decision within the decision period.
The employer rejected the application for a reason other than one of the eight specified grounds.
The employer’s decision to reject the application was based on incorrect facts.
The employer treated the application as withdrawn when it was not entitled to do so.
The potential compensation awarded is limited to eight weeks’ pay (the statutory cap of a week’s pay applies).
If an employee’s flexible working request is refused they may be able to pursue other claims, for example for constructive unfair dismissal or under the Equality Act 2010 for discrimination (including possibly on grounds of sex, disability, or religion or belief).
Parental bereavement leave
Parental bereavement leave is only available to employees and is a period of one or two weeks’ leave that may be taken at any time within 56 weeks of the death of a child.
A child is anyone under 18 years and includes a baby that is stillborn after at least 24 weeks of pregnancy. A parent for the purposes of parental bereavement leave includes a wide number of people, including birth and adoptive parents; those who have become parents under various statutory provisions on surrogacy and fertility treatment; those whose home the child is living and who have had day to day responsibility for the child’s care for at least the four weeks prior to death; and the partner of any of the above.
The leave may be taken as one whole week, two consecutive weeks, or two separate weeks at different times.
An employee may also be eligible to receive statutory parental bereavement pay. In order to be eligible certain conditions apply, including that the employee must have been employed by the employer for at least 26 weeks (up to the week before the child died).
An employee can complain to an employment tribunal in relation to a number of offences relating to parental bereavement leave, for example, if they are is subjected to a detriment or dismissed where the reason (or principal reason) is connected to the employee taking or seeking to take parental bereavement leave or to the employer believing that the employee was likely to take parental bereavement leave. An employee who is dismissed in these circumstances will be able to claim unfair dismissal whether or not they have the necessary qualifying service for an ordinary unfair dismissal claim.
To talk in confidence regarding any questions you may have regarding family rights, please contact us.