WorkLife

Our thoughts on the world of employment law - and beyond.

Dad matters

Last week, Rebecca mentioned that from 1 October expectant fathers or partners of pregnant women will be entitled to take unpaid time off work to attend ante-natal appointments with their partner. Having had a chance to review the recent guidance published by the Department for Business Innovation and Skills, I will look at the practicalities of how this will work in further detail.

Firstly, this new right will not only apply to the baby's father, it will also apply to the expectant mother's spouse, civil partner, or partner (of either sex) in an enduring relationship; or the intended parents of a child in a surrogacy arrangement. The guidance does not provide any clarification as to what would be considered an "enduring relationship", so there is some lack of clarity as to the scope of this right and how an employer would check that an employee is entitled to exercise it. There is no qualifying period for employees - the right applies from the first day of their employment – however, qualifying agency workers will need to have been doing the same kind of job for the same hirer for at least 12 weeks.

Sometimes the pregnant woman's husband or partner and the father of the child will not be the same person. In such cases both the partner or husband and the father may each have a right to time off for up to 2 appointments. The expectation is that there will be very few instances where both would seek to exercise the right (as in practice the woman may not want both to accompany her to an ante-natal appointment).

Where a man is an expectant father with two different women, he can take time off to attend appointments with each pregnant partner. Again, the expectation is that this is unlikely to happen very often.

The right is to unpaid leave to accompany a pregnant woman up to 2 appointments with the maximum time capped at 6 hours and 30 minutes per appointment. The leave can cover travelling time, waiting time and attendance at the appointment. Six and a half hours represents half the maximum working day under the Working Time Regulations, which specify that a working day can be up to 13 hours. In reality, however, the expectation is that an employee will need no more than half a day off for an ante-natal appointment. Employers are, of course, free to offer more time off, which can be taken from annual leave.

As an employer, how can you check that an employee claiming the right to attend ante-natal appointments with a pregnant woman is entitled to do so? The guidance says that an employer can request an employee to provide a signed declaration stating:

a)    that the employee has a qualifying relationship with a pregnant woman or her expected child;

b)    that the employee's purpose in taking time off is to accompany a pregnant woman to an ante-natal appointment;

c)    that the appointment in question is made on the advice of a registered medical practitioner, registered midwife or registered nurse; and

d)    the date and time of the appointment.

Of course, for a right to be effective, it must come with a remedy. If an employee or agency worker who is entitled to the time off is denied this right, they can complain to an Employment Tribunal within a 3 month period. If their complaint succeeds, the Tribunal must make a declaration and order compensation calculated as twice the hourly rate of pay for each of the hours that person would have taken off if the right had been respected. In addition, those who exercise or seek to exercise this right are protected in law from suffering any detriment from having done so. Detriment could include victimisation, being denied promotion or job opportunities or otherwise being disadvantaged as a result of taking the time off or asking to take it off. If an employee is dismissed for taking the time off or asking to take it off, the dismissal would be automatically unfair.

There are likely to be many employers questioning the government's decision to increase the legislative burden on them and the apparent scope for this right to be abused. It is unclear what will constitute an enduring relationship and therefore who qualifies for the right, and it will be difficult for employers to check that the time off is taken legitimately to accompany a pregnant woman to an ante-natal appointment. The Government's position is that, on the basis that the time off is unpaid and of limited duration, it would be disproportionate to be too restrictive with regard to the exercise of this right. Research evidence shows that a third of fathers still do not take any time off before the birth of their child and the Government's strategic aim here is to encourage shared parenting through the involvement of fathers with their children from the earliest possible stages.

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