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 the final part of this series, Kathryn McKinney from law firm Martelli McKegg answers some common questions on this topic

In Part 1, we covered how an employee knows if their employer is entitled to parental leave, the difference between the types of parental leave, if employees need to be paid while on leave and whether or not the employee’s role must be kept open for 12 months. In this second part, we cover duties while pregnant, leave for partners, and questions that may arise when an employee is planning to return to work.

My pregnant employee is struggling with the more physical aspects of her job. Do I need to change her duties?

If your employee is unable to perform her work safely or adequately due to pregnancy, you may temporarily transfer her to another role. You can ask your employee to seek medical advice on what duties she can do safely, or you might want to seek the advice of an occupational therapist. However, in some cases, there might not be any suitable alternative roles, or your employee might be too unwell to work at all. In those cases, a medical practitioner (usually a midwife or doctor) can certify that the employee should start her primary carer leave early.

Employers should check in with their pregnant employees regularly to make sure that they are coping with their duties.

My employee's partner is having a baby and has asked for time off. How much are they entitled to?

If your employee has been working for more than six months at the due date and for more than 10 hours a week on average, they will be entitled to one week’s unpaid partner’s leave.

If your employee has been working for 12 months at the due date and 10 hours per week on average, then they will be entitled to two weeks of unpaid partner’s leave. This can be taken any time between 21 days prior to the due date and 21 days after the baby is born.

When will I know when an employee is going to return to work from parental leave?

You must assume that your employee is going to return at the end of the leave period.

If an employee decides not to return to work, they must tell you at least 21 days before they are due back.

It’s a good idea to keep the lines of communication open while your employee is on parental leave, so you understand what they are planning to do.

My employee has asked to work part time. Do I have to agree to this?

The business has an obligation to keep the employee’s role open while they are on leave. If this is a full-time role, then the employee will be entitled to return to that full-time role. They don’t have an automatic right to insist on a part-time role.

However, any employee (whether returning from parental leave or not) can ask for a flexible working arrangement. This request could include changes to the way the employee works, where they work and/or the hours worked. If an employee indicates that they want to make a request for a flexible working arrangement, you should ask them to complete the required form.

The business must then consider the request in good faith and reply within one month. There are a number of limited grounds on which a business may reject an application for a flexible working arrangement. Basically, there needs to be genuine commercial grounds for doing so. It is important the employer follows the correct procedure.

Is there anything else I need to know?

Parental leave can get quite tricky and there are lots of other scenarios we have not covered here, such as sharing leave and rights on adoption. If you get it wrong, it can be costly. If in doubt, feel free to call us to discuss.

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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.