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Family & Dependent Rights 

Family & Dependant Rights

Our experienced team provides compassionate and practical advice to individuals facing family and dependent-related legal issues. 

Family Portrait

Maternity Leave

There is no qualifying employment period required for any employee to be entitled to maternity leave. 

 

Ordinary Maternity Leave ("OML") lasts for 26 weeks, including 2 weeks of compulsory maternity leave which the employee must take.   The statutory notification requirements must be met in order to enjoy the right to OML. If an employee qualifies for OML they will also qualify for additional maternity leave which lasts for a further 26 weeks.  Additional Maternity Leave ("AML") may be taken for a further 26 weeks.

Unless the employment contract provides otherwise, an employee is not entitled to their normal rate of pay during OML or AML.  However, may be eligible for statutory maternity pay (SMP) for a period of 39 weeks in total.

 

During the first 6 weeks of maternity leave the employee is entitled to the "earnings-related rate" which is 90% of her normal weekly earnings. For the remaining 33 weeks, the employee would receive the "prescribed rate" which is the lesser of 90% of her average earnings and £184.03 (the current SMP rate) .

In addition to the above rights pregnant employees have the right to take paid time off to attend ante-natal care classes; qualifying employees and workers are able to accompany the mother to some ante-natal care appointments. There is also the right to take adoption leave, in certain circumstances.

 

Paternity Leave

 

From 8 March 2024, new legislation makes changes to statutory paternity leave and pay regulations. Paternity Leave (Amendment) Regulations 2024

 

The changes apply where children are due to be born or placed for adoption after 6 April 2024. 

 

The following statutory provisions will change:

  • fathers and partners can choose to split their leave and pay into two non-consecutive periods of leave of a week each

  • fathers and partners will be able to take their leave and pay any time during the first 52 weeks of the birth or the placement of the child for adoption

  • employees will need to inform their employer of their entitlement to their leave 15 weeks before the expected week of childbirth, however, employees will only need to give 28 days’ notice of the dates they wish to take.

To qualify for paternity, the father must have worked with his employer for at least 26 weeks ending with the 15th week before the expected week of childbirth. This right applies to not only the child's biological father, but also to the mother's husband, civil partner or partner at the time.

 

The employee may also be eligible to receive statutory paternity pay which is the lesser of 90% of their average weekly earnings and £184.03 (the current statutory paternity pay rate) .

 

Parental Leave

Parental Leave is unpaid time off from work to care for a child/ren or make arrangements for the child/rens' well-being.   Parents can take up to 18 weeks (per child) off work, as long as the child is under 18.   There is a requirement to have worked for the employer for at least a year before making a request to take parental leave and this must be done with at least 21 days notice of a wish to take parental leave.   The statutory scheme allows an employee to take leave in blocks of 1 week.  Up to a maximum of 4 weeks' parental leave can be taken in any one year.   An employer can decide that they will allow a variation to the statutory block and reduce it to days.  They are however, able to postpone the taking of leave for up to 6 months, if there is a business need and employee's absence is likely to cause harm to the business.

Shared Parental Leave

Shared Parental Leave ("SPL") is available to eligible parents where their baby was born or for parents of children placed for adoption after 5 April 2015.  SPL does not affect Parental Leave.

 

A mother or primary adopter is entitled to 52 weeks of Maternity/Adoption Leave.  There is an option to bring that leave to an end early and share what would have been the remainder of the Maternity/Adoption Leave with the child's father or the mother's husband or civil partner or partner; or, in the case of adoption, the secondary adopter (the "other parent").

 

The mother's partner for these purposes is a person (whether of a different sex or the same sex) who lives with the mother and with the child in an enduring family relationship.  A mother must take her 2 weeks compulsory Maternity Leave and the primary adopter must similarly take 2 weeks' Adoption Leave.   The other parent who has caring responsibilities for the child is entitled to take their 2 weeks' Ordinary Paternity Leave ("OPL").   However, the other parent must take their Paternity Leave prior to any SPL as otherwise they will lose their entitlement to Paternity Leave. 

Time off for dependents

Employees are able to take a reasonable amount of unpaid time off in the event of an emergency or if something unexpected occurs, such as if an employee's childcare falls through. All employees are entitled to this time off, regardless of how long they have worked for their employer. The situation must involve a dependent who, in addition to a child, may be the employee's spouse, civil partner, parent or a person living in the same household who is not their employee, tenant, lodger or boarder. If the employee was aware of the event in advance, they are not generally entitled to exercise this right.

 

Parental bereavement leave and pay

The Parental Bereavement (Pay and Leave) Act 2018 entitles employees who find themselves in the tragic situation of having lost a child under the age of 18 to have 2 weeks' bereavement leave and, for those with the necessary 26 weeks qualifying service, paid leave.   The leave can be taken as one two week period, two separate periods of one week, or as one single week.  The leave can start on or after the date of the death or still birth, and must finish within 56 weeks of the death or still birth.  

 

New Carers Leave 

A new day one right for carer's (meaning you do need to meet criteria for any length of service) is to be implemented from 6 April 2024 for employees in England, Scotland and Wales. This will mean that if you care for a dependant you are entitled to one week of unpaid leave per year to provide that care.

 

There is a definition for who is a dependant and this could be your spouse or civil partner, child or parent or any person who has come to rely on you to provide or arrange care, and it does not have to be a family member. It can include any person who lives with you, although it excludes someone who lodges with you or pays you rent.

 

The Act that gives the rights to carers to be able to take the leave is the Carer’s Leave Act 2023 and it stipulates that the leave is available to employees who need to give or arrange care for a dependant who have:

  • a physical or mental illness or injury that means they need care for more than three months

  • a disability which is defined by the Equality Act 2010

  • they need care because of their old age.

 

If you are an employer it is your choice if you use discretion to continue to pay your employees. It also means that you need to implement a carer’s leave policy to include information on who meets the definition of carers and dependants, and to explain how much notice you will require and if employees will be paid or unpaid.

Protection from Redundancy (Pregnancy and Family Leave)

From 6 April 2024, the Protection from Redundancy (Pregnancy and Family Leave) Act 2023 will come into force. The Act will enhance protection from redundancy for new or expectant parents. At the moment parents on maternity, adoption or shared parental leave (SPL) are protected from redundancy during the period of their leave. This means that if there is a prospect of redundancy, then a suitable alternative job must be offered. Failure to do so could be automatic unfair dismissal and discriminatory.

Pregnancy and maternity are protected characteristics under the Equality Act 2010.

 

Under the current law, protection against redundancy begins at the point when an expectant mother tells their employer about their pregnancy. It ends either at the end of their statutory maternity leave or two weeks after the end of their pregnancy where there is no statutory leave. 

 

Under the new rules, the additional protected period begins when an expectant mother informs their employer of their pregnancy and ends 18 months after birth, if they tell their employer the birth date before their maternity leave ends. The same applies to adoption leave but instead equates to 18 months after a child’s placement date or entry date into the UK if adopting from abroad. 

 

In the event of a miscarriage, around which employers should display extra care and sensitivity, the protected window is two weeks after the pregnancy if it was less than 24 weeks or for the entire statutory maternity leave period if longer. 

 

With SPL lasting less than six weeks, the protected window lasts until the leave is over. If parents take more than six weeks of SPL, then the protected window lasts until 18 months after a child’s date of birth.

 

There are protected windows that employers should ensure they are aware of and they should also consider suitable alternative roles. If an employer fails to take steps the result could be a finding of automatic unfair dismissal resulting in uncapped compensation.

The Statutory Rates from 1 April 2024

 

National Living Wage

21+ Year Old Rate .....................................................................      £11.44

18-20 Year Old Rate ....................................................................... £8.60

Under 18 Rate ...................................................................................£6.40

Apprentice Rate ............................................................................. £6.40

Accommodation Offset ...............................................................£9.99

SSP per week .............................................................................  £116.75

Lower Earnings Limit per week ............................................£123.00

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