Refresher on family-friendly rights and the implications of Covid-19

Employers need to be familiar with family-friendly rights and the impact of the pandemic on parents and pregnant workers. Emma Thompson, head of Employment Law, reminds employers that ‘not complying with family-friendly rights can lead to expensive and time-consuming tribunal claims.’

Emma runs through the main family-friendly rights and protections, including rights in a redundancy situation and the implications of furlough arrangements, as well as highlighting employer responsibilities to protect pregnant employees during the pandemic.

What are the key rights to family-friendly leave?

Regardless of length of service, new mothers and newly adopting parents can take 26 weeks’ ordinary maternity or adoption leave and 26 weeks’ additional leave.

Employees are entitled to receive statutory maternity or adoption pay for 39 weeks of the leave period, provided their pay is above a minimum threshold and they have worked for their employer for 26 weeks.

The first six weeks are paid at 90% of average pay and at the statutory rate for the remaining 33 weeks (£151.97 from 4 April 2021), if higher than 90% of average pay.

The rules set out how to work out the dates for calculating average pay and for determining if an employee has enough service to qualify for paid leave.

Shared parental leave

Although the uptake has been low, since 2014 eligible partners of new mothers and adopting parents can share the parental leave. Mothers must take off the first two weeks after giving birth, but after that the couple can take advantage of the flexible arrangements. The rules are not straightforward, and we can help you respond to any requests to share parental leave.

Paternity leave

Partners also have the right to two weeks’ paternity leave following the birth or adoption of a child. To be eligible, the partner must have worked for their employer for a minimum period of 26 weeks.

Furlough and pay during family-friendly leave

The rules for calculating average pay, in order to work out pay during family-friendly leave, have been adjusted during the pandemic. This ensures that furloughed employees do not lose out and their average pay is calculated on what they would have been paid if they had not been furloughed.

Leaving employment and paid family-friendly leave

Regardless of the reason for leaving, you may still have to pay an eligible employee their statutory pay after they have left employment with you. This depends on the date their employment ends. We can advise you to ensure you meet your obligations.

Protection for employees taking family-friendly leave

Employees are protected from being selected for redundancy or subjected to a detriment because they took family-friendly leave. Where the redundancy selection process is based on recent performance, the process may need adjusting to ensure that it takes into account employees having been off work on family-friendly leave. This adjustment should be fair to all employees in the selection pool.

Other than their pay, employees are entitled to the same benefits under their contract of employment during their family-friendly leave. They continue to accrue their paid holiday entitlement.

Employees have the right to return to the same job after taking family-friendly leave. In some circumstances, you do not have to hold their job open for them, but you must ensure that they return to a suitable job on no less favourable terms. We can advise you on when this would apply.

Family-friendly leave and redundancy rights

Unfortunately, the predicted economic bounce back may come too late for many employers who are making or expecting to make redundancies. Employers must take into account the special protection given to employees who are out of the workplace on maternity, adoption, or shared parental leave. These employees have the right to be prioritised for any suitable, alternative vacancies if they are made redundant while on leave. Get this wrong and you could face a claim for automatically unfair dismissal.

Parental bereavement leave

Since April 2020, parents whose child dies or is stillborn after 24 weeks have the right to two weeks’ bereavement leave. If the parent meets the eligibility criteria, you must pay them at the same rate as maternity pay.

Parents and furlough

Since January 2021, the government guidance on the Coronavirus Job Retention Scheme states that employees can be furloughed because they have caring responsibilities as a result of the pandemic, for example if a school or childcare provision has closed or they are caring for a self-isolating child. Despite calls from the TUC, parents were not given the legal right to require their employers to put them on furlough leave if they could not work due to caring responsibilities.

The Office for National Statistics (ONS) reported that during the first lockdown in 2020, women did 77% more childcare than men. During the pandemic, many working parents will have juggled childcare while working from home. If employers are assessing performance over that period, such as for redundancy selection, performance management or promotion opportunities, look at how this can be taken into account. As women tend to do more childcare, it could be discriminatory to ignore this impact on working mothers.

Pregnant workers and Covid-19

Pregnant women are classed as clinically vulnerable. The Health & Safety Executive’s guidance on how to Protect vulnerable workers during the coronavirus pandemic will help you comply with your responsibilities for pregnant employees’ health and safety. If it is not possible for the pregnant employee to work from home or to otherwise make her job safe, you may have to suspend her on full pay on medical grounds. If the employee is suspended within four weeks of the expected week of childbirth, this will trigger the early start of her maternity leave. We can advise you on how to ensure you treat pregnant women lawfully and in particular on the crucial step of carrying out an individual risk assessment.

We can help you avoid employment tribunal claims by ensuring you comply with your obligations to pregnant workers and parents during another challenging chapter in the pandemic.