Paid leave

The number of days’ paid leave an individual is entitled to each year is governed by legislation. Most workers are entitled to paid annual leave of up to 28 days each year, with part-time workers getting pro rata holidays. There is no qualifying period applicable. Workers must not work for their employer when taking their statutory annual leave.

The 28-day entitlement includes bank holiday provision but there is no statutory entitlement for employees to take bank holidays off work. Workers must also inform employers of when they want to take holiday. Unless their contract gives other arrangements the notice should be at least twice as long as the leave to be taken, e.g. two weeks’ notice for one week’s holiday. An employer can refuse the holiday request provided they give the employee notice that is at least as long as the holiday requested. So, if the employee wishes to take the week beginning 7 September as leave, they must give two weeks’ notice, which means they must inform the employer by 24 August; if the employer wishes to refuse the request the response must be given a week before the intended holiday, i.e. by 31 August.

The contract of employment may also set out other rules about when holiday can be taken, e.g. during a winter or summer shut down. This is allowed provided the rules don’t effectively prevent employees from taking a holiday at all.

There have been a number of court cases in the past few years which address the question of sickness and leave. You can find more details from page 296.

Payment for annual leave

Pay while on leave is the average pay over the 12-week period prior to the holiday. The rules for determining average pay are those in the Employment Rights Act. However, in the case of Lock v British Gas Trading and others the ECJ ruled that where commission forms a part of pay it should be taken into consideration alongside basic pay when determining holiday pay. Once that principle was decided, the case was remitted back to a tribunal for a ruling on how the principle should be applied. The tribunal has given a ruling, which is being appealed and it is hoped that the appeal will also give some guidance about what reference period should be used for calculating commission-based holiday pay. This is an area where Randstad recommends you seek professional advice as the situation is likely to change in the next few months.

Maternity leave

By law a woman who has given birth must take a fortnight off work; four weeks if she works in a factory.

A pregnant employee (not worker) has the right to 26 weeks of Ordinary Maternity Leave and 26 weeks’ Additional Maternity Leave, thus entitling women to take a combined 52 weeks’ Statutory Maternity Leave. Provided they give proper notice they can take this no matter how long they have worked for an employer, how many hours they work, or how much they are paid. (For details on maternity pay, see page 122.) She must also give her employer eight weeks’ notice of er intended return to work or of any change to the intended date if she is not using all 52 weeks of her maternity leave.

From April 2015 mothers who have children via surrogacy are also entitled to maternity leave.

Paternity leave

Only employees who have worked continuously for 26 weeks before the end of the 15th week before the expected date of childbirth (the qualifying week) are eligible to apply for paternity leave. In adoption cases the qualifying week is the week when you are matched with the child for UK adoptions or the week in which the child enters the UK or an agreed number of days after this date for overseas adoptions.

The employee must be either be: the father the husband or partner of the mother (or adopter) – this also applies to same-sex partnerships theadopter.

Ordinary Paternity Leave is either one week or two and must be taken in one go. It cannot start before the birth and must end within 56 days of the birth. The employee must give their employer 28 days’ notice if they want to change the start date of their leave. They do not have to give an exact date for the start – just a general time, e.g. one day after the birth or two weeks after the birth.

Shared parental leave

From April 2015, Additional Paternity Leave has been replaced by Shared Parental Leave. Parents have the right to share maternity leave, provided they pass certain employment tests. The mother must still

take the first fortnight after the birth as leave (four weeks for a manual factory worker) but after that she may choose to share the rest of her maternity leave with her partner. An adopter can choose to share

adoption leave after the first two weeks. Whether the child is born or adopted, couples can share up to 50 weeks’ leave. The idea behind the scheme is that it allows couples to be flexible about childrearing responsibilities during the first year. It is important to remember that a mother may share her leave with only one other person.

To be eligible for shared parental leave for one or both parents the mother must:

• have a partner

• be entitled to maternity/adoption leave; or to statutory maternity/adoption pay or maternity allowance (if not eligible for maternity/adoption leave)

• have given notice that they wish to reduce their maternity/adoption leave (or their pay/allowance if not eligible for leave).

A parent who intends to take shared parental leave must:

• be an employee

• share the primary responsibility of caring for the child at the time of birth or adoption with the other parent

• have satisfied the ‘continuity of employment test’ (this is the same as that for paternity leave, see above) and their partner must meet the ‘employment and earnings test’

• have properly notified their employer of their entitlement and provided the necessary evidence and declarations.

The employment and earnings test requires that in the 66 weeks leading up to the due date (or the date the adopter is approved to adopt a named child or children) the person has worked for at least 26 weeks and earned an average of at least £30 (in 2015) a week in any 13 weeks. This means that while a self-employed person would not be eligible for shared parental leave (because they would fail the employee requirement) their partner might be eligible if the self- employed person passes the employment and earnings test. If both parents are employees and both qualify, then they will need to decide how to share the parental leave between them. Depending on the employer’s existing flexible work and maternity leave policies, not to mention the family’s financial considerations, Shared Parental Leave may not always be the best option. However, it is important to remember that the decision can be taken at any point when the family is still eligible, provided the employer receives the right amount of notice. It is also possible for parents to change their minds about the division of leave at any point and to apply to change their request. Shared Parental Leave does not have to be consecutive – it can be concurrent – providing the person eligible for maternity/adoption leave has given notice that they are reducing the amount of maternity leave.

Shared Parental Leave can start on any day of the week but must be taken in full weeks – so leave that starts on a Wednesday will finish on a Tuesday. It can be booked as either one block – known as a continuous block – or as separate periods – known as discontinuous blocks. Once a request for discontinuous leave has been made, the employer and employee have 14 days to discuss the request. If it is refused, the employee must take the leave as a continuous block or submit a new request. This can become particularly complex where both parents are eligible for leave and one employer agrees a discontinuous block while the other refuses it, as both parents may have to re-submit requests. An employee who wishes to take Shared Parental Leave must submit a ‘notice of entitlement’ to their employer, giving at least eight weeks’ notice. The notice must include:

• how many weeks’ maternity/adoption leave have been or will be taken (or pay/allowance if the mother was not eligible for leave)

• how much leave both parents are entitled to take how much leave each parent intends to take when they expect to take their leave

• the signatures of both parents.

Legally, parents are entitled to submit three notices but an individual employer may allow more. Once the mother has given notice to end maternity/adoption leave and either parent has informed their employer of their intention to take Shared Parental Leave, then the notice to end maternity leave is binding and cannot be revoked unless:

• within eight weeks of submitting the notice it transpires that either partner does not qualify for Shared Parental Leave

• if notice was given before the birth it is withdrawn within six weeks of the birth (no reason is necessary) the partner dies.

Acas advises employers who become aware of an employee’s pregnancy or intention to adopt to have an informal discussion to discuss all the options available to the employee. Employers also need to make sure line managers are aware of all the rights and entitlements of an employee who wishes to take Shared Parental Leave. No employee should ever suffer a detriment for seeking to take Shared Parental Leave. An early discussion can help the employer and employee agree leave times that mutually beneficial, and help the employer understand when cover might be needed.

An employer cannot refuse a request for continuous leave but there are four possible outcomes for a request for discontinuous leave:

• accept the request unconditionally

• agree and confirm a modified request – the employee should not be put under any pressure to modify the request nor should they suffer a detriment for not modifying the request

• refuse the request – the employer must propose alternative dates, a confirmation of their refusal and clear information on what options are available to the employee, e.g. withdraw the request, move to continuous leave or modify the arrangement

• fail to respond within the statutory 14-day period, in which case the request for discontinuous leave automatically defaults to continuous leave, which can either start at a date of the employee’s choosing or when the discontinuous leave would have started if the employee does not provide a date.

Acas has produced templates of forms and letters, plus a good practice guide for employers and employees, and a summary process document. You can find them all at: http://www.acas.org.uk/index.aspx?articleid =4911

During Shared Parental Leave an employee and employer will be able to agree up to 20 Shared Parental Leave In Touch (SPLIT) days. There is no obligation on an employer to offer these days or for an employee to agree to them but they can be used in situations where both parties feel it would be beneficial for the employee to attend a work-related activity, e.g. a team meeting or training, or to work part of a week to help the employee return to their role in a gradual way.

When an employee returns to work following a period of Shared Parental Leave they are entitled to return to the same job if their combined leave period (comprising of maternity/paternity/adoption and shared parental leave) totalled 26 weeks or less. This is unaffected by unpaid parental leave of up to four weeks being taken as well. If the number of weeks of maternity/paternity/adoption and Shared Parental Leave exceeds 26 weeks in aggregate, or the total number of unpaid parental leave exceeds four weeks, an employer must allow an employee to return to the same job unless it is not reasonably practicable, in which case they must offer a suitable and appropriate job on terms and conditions that are no less favourable. In practice it is unlikely that a change to the employee’s role would be justified, even if the amount of leave was more than 26 weeks.

As with maternity, adoption and paternity leave, annual leave continues to accrue during the time the employee is on Shared Parental Leave.

For details on Shared Parental Pay see article 63.