What is parental leave?
Parental leave (ie ‘unpaid parental leave’) is the right to take up to 18 weeks of unpaid leave to care for a child before the child’s 18th birthday. This applies to each child a parent has, including adopted children. This is the minimum right permitted by law - an employer can choose to enhance it. Parental leave is available to employees with 12 months’ service (ie to employees who have been with their employer for over a year).
Employers may choose to enhance unpaid parental leave rights or to make certain changes to the default statutory scheme via a workplace or collective agreement (eg they may choose to pay parents during their parental leave or may extend the right to employees with less than 12 months' service).
When can parental leave be taken?
By default, leave must be taken in whole weeks (eg one week or 2 weeks at once, rather than individual days) and only up to 4 weeks per year may be taken per child. This is calculated pro-rata for part-time employees so, for example, If an employee works 3 days per week, one ‘whole week’ of parental leave for them would be 3 days. If a child has a disability, leave taken for them doesn't need to be taken in whole weeks. An employer can also agree to an employee not taking the leave in whole weeks.
Parental leave relates to a child rather than to a job and so can be carried over from a previous job. For example, an employee entitled to 18 weeks who has already used 11 weeks of leave with a previous employer can only use their remaining 7 weeks when they move to a new employer.
How can parental leave be taken?
Parents should give their employers 21 days’ advance notice before the intended leave’s start date. If the employee or their partner is having a baby or adopting and plans to take their parental leave for this purpose, they should give notice 21 days before the child is expected. Employees must confirm the start and end dates in their notice. The notice doesn’t need to be in writing unless an employer requests this.
An employer should consider making a Parental leave policy to explain the parental leave process within their business, to help ensure obligations are met and rights are upheld.
Who can take parental leave?
Only employees with parental responsibility can take parental leave (unless the employer permits individuals without parental responsibility to take such leave). This means they must:
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be the child’s biological parent (whether or not living with the child)
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be the child’s adoptive parent, or
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otherwise have (or expect to have) legal parental responsibility for the child (eg under a surrogacy arrangement)
Foster parents typically only qualify for parental leave if they have acquired parental responsibility for the child. Similarly, a child’s step parent is generally not entitled to parental leave for the child unless they have formally acquired parental responsibility (eg by adopting the child).
An employer can ask for reasonable evidence of parental responsibility (eg a birth certificate), provided that it is reasonable to do so. For example, employers can’t ask for proof each time an employee requests parental leave.
Only employees are entitled to parental leave - not workers, contractors, or self-employed people. This is the case unless an employer has extended parental leave to one or more of these groups.
Can an employer postpone parental leave?
Employers cannot refuse or cancel parental leave. However, if taking parental leave at a specific time would unduly disrupt business operations (or if the employer has another important reason why it would be inappropriate), the employer can postpone the requested leave for up to 6 months. Leave cannot be postponed if:
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it is being taken by the father or partner immediately after the child’s birth or adoption
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delaying the leave would mean the child is no longer under the age of 18, meaning that the employee will no longer qualify for parental leave
To postpone parental leave, the employer must consult the employee and notify them of the postponement (including the new leave dates) within 7 days of their request. They must also suggest a new start date for the leave which is within 6 months of the requested start date. The employer cannot change the amount of leave that is being requested.
If the postponement is 'unreasonable', the employee can bring an Employment Tribunal claim. The tribunal will balance the impact that allowing the leave will have on the employer against the impact of the refusal on the employee.
What rights do employees have when taking or requesting parental leave?
During parental leave, an employee’s Employment contract continues except for pay and benefits. Employees still build up their holiday entitlement as usual while they are on parental leave. Rights under pension arrangements continue to accrue while parental leave is taken.
Employees and workers are permitted to carry over any statutory holiday entitlements remaining at the end of a leave year into the next leave year, if they’ve been unable to take this holiday due to being on parental leave.
Employees must not be dismissed or subjected to detriment for taking or requesting parental leave or this can lead to discrimination claims. An example of being subject to detriment would be an employer reducing an employee’s hours or turning down their training requests without a proper reason.
Information provided as a part of a leave request must be processed following the employer’s Data protection policy and Employee privacy notice.
Care must also be taken to adjust performance and bonus targets so employees aren't unfairly penalised for taking parental leave, although pro-rating is normally acceptable. Bonuses that do not depend on work performed (eg loyalty bonuses and some Christmas bonuses) should not be reduced.
Rarely, it may not be practicable to have the employee return to the same job following a period of parental leave. In this case, they must be offered suitable, alternative employment.
Tricky issues can arise, especially where parental leave is extended or combined with other leave rights. If in doubt, Ask a lawyer about these tricky areas.
What is the difference between parental leave and other types of leave for parents?
Parental leave is a right that parents have in addition to other types of leave that parents are entitled to, such as:
All of these forms of leave help parents to care for their children, but they are different entitlements with different effects. For example, maternity leave is only for those giving birth and is specifically designed to assist pregnant employees before and after the birth of a child. In contrast to unpaid parental leave, no minimum time with an employer is required for maternity leave and specific minimum rates of maternity pay apply.
There may also be situations, such as emergencies, where an employee needs just one or 2 days to look after their child. In these instances, parental leave is not appropriate, but parents could instead use one of the following:
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their annual leave
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their statutory right to time off for dependants
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special leave - ie voluntary leave entitlements that an employer may set out in an Employment contract or employment policy, such as an entitlement to compassionate leave
