Navigating parental leave

For many small to medium-sized businesses, dealing with parental leave can be daunting without the resources available to larger organisations. Understanding your obligations and getting good advice from professional advisers can help you through. In part one of this two-part series, Kathryn McKinney from law firm Martelli McKegg answers some common questions on this topic

The first question an employer probably has when an employee says they’re pregnant is ‘what do I need to do?’. When an employee asks for parental leave, talk it through with them and make sure they meet the conditions for the leave they want to take.

The first thing you need to do is ask the employee what her due date is and when she would like to start parental leave. Once you know these details, you can work out what your obligations are.

When an employee applies for parental leave, you have seven days to request further information and the employee must respond within 14 days.

After 21 days, you will need to send the employee a letter confirming whether or not they are entitled to parental leave, their rights and if you can keep their role open.

How do I know if my employee is entitled to parental leave?

Your obligations as an employer will be different, depending on how long the employee has been employed by you and how many hours they work a week. Firstly, the employee must have been working for you for at least six months at their due date to have any entitlements. Secondly, the employee must have worked an average of at least 10 hours a week over either the previous six months or 12 months before their due date.

If your employee has advised that she is pregnant, and she will have worked for you for at least six months at her due date, and for more than an average of 10 hours a week, then she will be entitled to 26 weeks of primary carer leave and 10 days of special leave.

If your employee has worked for more than 12 months at her due date and for more than 10 hours a week over that time, then she will be entitled to 52 weeks of primary carer/extended leave and 10 days of special leave.

What is the difference between these types of leave?

The different types of leave can get really complicated and the employee’s entitlement

will depend on the employee and their partner’s eligibility. This is because some couples will agree to share leave (which is a whole different topic!).

Primary carer leave and extended leave is unpaid leave. Basically, it’s the length of time that you need to keep the mother’s job open for. This can be up to 52 weeks.

pecial leave is 10 days of unpaid leave that an employee who is pregnant can use for pregnancy related reasons. This would normally include midwife appointments, scans and antenatal classes.

Do I need to pay my emplyee anything while on leave?

While many employees will be entitled to paid parental leave, an employer is not required to pay anything during parental leave. The government is responsible for paying this but there is a maximum entitlement per week that is paid.

Employers sometimes choose to ‘top up’ the employee’s pay for a period of time during parental leave but this is not required by law.

Do I have to keep my employee;s role open for 12 months?

In most cases, businesses will need to keep their employee’s role open while they are on primary carer leave or extended leave up to 52 weeks.

Businesses will have to consider how they will reallocate work among the other staff, or hire temporary cover (eg, on a fixed term contract).

On rare occasions, a business will not be required to keep the role open if they can prove a temporary replacement is not reasonably practicable due to the key nature of the position, or because of a genuine redundancy situation. If you believe that this situation applies, we strongly recommend seeking legal advice first.

Redundancy situations will need to be handled with care. There is a presumption that a woman on parental leave will be redeployed within the business if possible. These protections stay in place for six months after the employee returns to work.

Check back next issue to read Part 2!

Kathryn McKinney is a specialist employment lawyer with 25 years’ experience advising on the full spectrum of employment and health and safety law. Known for her sound judgment and pragmatic approach, she also brings extensive expertise in workplace investigations and regulatory matters.