Employees and certain agency workers in England and Wales who have a “qualifying relationship” with a pregnant woman will have the statutory right to unpaid time off work in order to accompany the woman to no more than two ante-natal appointments from 1 October 2014. The Department for Business, Innovation and Skills (BIS) has published guidance to assist employers in applying these new regulations, which have been introduced to increase the involvement of both parents in a child’s upbringing. From 5 April 2015 employees and certain agency workers will also have the right to take paid time off to attend adoption related appointments prior to a child being placed for adoption with them. This Dechert OnPoint outlines the key requirements of these new rules. 

The right to time off to accompany a pregnant woman to ante-natal appointments

Under rules introduced by the Children and Families Act 2014, from 1 October 2014 employees and qualifying agency workers will be entitled to take unpaid time off work on up two occasions during working hours in order to accompany a pregnant woman to an ante-natal appointment, provided that the appointment is made on the advice of a registered medical practitioner, midwife or nurse. In its guidance, BIS suggests that this right will extend to scans and other tests in addition to routine ante-natal appointments. 

BIS emphasises that the individual is only entitled to time off to accompany the expecting woman to the ante-natal appointment – individuals are not, by virtue of this right, entitled to attend the appointment (although they may of course do so with the woman’s consent).

Employees and agency workers are permitted to take off up to six and a half hours for each appointment that they attend, although employers can offer additional time off if they wish. BIS indicates that this time off work includes travelling time, waiting time and attendance at the appointment.

Who benefits from the right to time off?

The right will apply to:

• husbands and civil partners of a pregnant woman;
• a person, whether of a different sex or the same sex, who lives with a pregnant woman in an “enduring family relationship” but is not a “relative” of the woman such as a parent, grandparent, sister, brother, aunt or uncle of the pregnant woman. No guidance is given on the meaning of an “enduring family relationship” but BIS suggests this is intended to cover individuals in a long-term relationship with the pregnant woman;
• the father of the expected child;
• a person who is deemed a parent of the expected child by virtue of sections 42 or 43 of the Human Fertilisation and Embryology Act 2008 (including, for example, the civil partner or spouse of a woman who is the subject of donor insemination); and
• a person who is a potential applicant for a parental order in respect of the child under section 54 of the Human Fertilisation and Embryology Act 2008 (or, in other words, the intended parents of a child in a surrogacy arrangement if they expect to be entitled to and intend to apply for a parental order in respect of the child).
   

The BIS guidance suggests that where the pregnant woman’s husband/partner and the father of the child are different people, both will have the right to time off although, in practice, the pregnant woman is unlikely to want both to accompany her. Similarly, where a man is expecting the birth of children with two different women, the BIS guidance suggests that he should be entitled to time off to accompany each woman on up to two occasions.

This right applies not only to all employees but also to those agency workers who have worked in the same role with the same hirer/end-user for 12 continuous weeks provided they are still working in the same role and there have been no breaks between assignments or during an assignment (except for certain specified breaks such as, for example, a break of six calendar weeks or less). Subject to the above, there is no minimum service requirement so the right will apply from “day one”.

What evidence is required?

As a condition of granting the time off, the employer (or, in the case of an agency worker, either or both of the relevant temporary work agency and hirer) is entitled to require a signed declaration from the individual confirming the time and date of the appointment, that he/she has a “qualifying relationship” with a pregnant woman or her expected child, that the purpose of the time off is to accompany the woman to an ante-natal appointment and that the appointment is made on the advice of a registered medical practitioner, midwife or nurse. Electronic declarations will suffice for these purposes. The BIS guidance notes that employers may not, however, ask for evidence of the ante-natal appointments themselves, such as an appointment card, as this is the property of the expectant mother.

What if the employer refuses to give the employee time off?

Although the right to time off appears on its face to be an absolute right provided that the relevant eligibility requirements are satisfied, and there is no indication in the BIS guidance to the contrary, there does appear to be scope for employers to avoid punishment for refusing to give individuals time off work in certain circumstances. This is because individuals can only bring a claim in the employment tribunal for a failure to allow an individual time off where the refusal is “unreasonable”. No guidance is provided in the legislation or by BIS as to the circumstances in which such a refusal would be reasonable or the factors to be taken into account in making that determination. However, this will presumably be a very fact sensitive issue – for example, it may potentially be reasonable to refuse a request where little or no notice is given by the individual and there is an unavoidable need for the employee to remain at work on the relevant day.

If an individual is unreasonably refused time off to accompany a pregnant woman to an ante-natal appointment he/she may bring a claim in the employment tribunal for an amount of compensation equal to twice his/her hourly rate of pay for each working hour for which they would have been entitled to be absent. Any such claim must be presented to the employment tribunal within three months from the day of the relevant ante-natal appointment (unless the tribunal considers it was not reasonably practicable for the claim to be brought within that period).

Detriment

Employees and agency workers will also be protected from being subjected to a detriment arising from their exercise of the right to accompany a pregnant woman to an ante-natal appointment such as, for example, being victimised, being denied promotion or job opportunities or otherwise being disadvantaged as a result of taking time off or seeking to take time off for these purposes.

Employees, but not agency workers, will also be deemed automatically unfairly dismissed if they are dismissed and the reason or principal reason for the dismissal relates to, or the dismissal takes place in circumstances relating to, the right to time off to accompany a pregnant woman to an ante-natal appointment. Employees will benefit from this right even if they have not completed two years’ continuous service with their employer.

The right to time off to attend adoption appointments

The Children and Families Act 2014 also introduces new rules, which will come into force on 5 April 2015, entitling employees and qualifying agency workers who have been notified by an adoption agency that a child is to be, or is expected to be, placed for adoption with them, to take paid time off to attend adoption appointments. The purpose of such appointments must be to have contact with a child who is going to be placed with the individual or any other purpose connected with the adoption. Time off cannot be taken on or after the date of the child’s placement.

Employees or agency workers who are adopting a child on their own will be entitled to paid time off to attend up to five such appointments up to a maximum of six and a half hours each. Where employees are adopting a child jointly with another person, one of the employees is entitled to elect to take paid time off to attend up to five such appointments and the other is entitled to elect to take unpaid time off to attend up to two such appointments – they cannot both take paid time off and each of them can only benefit from the right to paid time off or the right to unpaid time off.

Where more than one child is to be adopted as part of the same arrangement, the individual may take time off to attend appointments for the purpose of having contact with any one or more of the children or for any purposes connected with any of the adoptions that are part of the arrangement. In these circumstances the maximum number of appointments for which time may be taken off will remain unchanged and no time off will be permitted after the date of the first child’s adoption.

An employee who is entitled to paid time off is entitled to be paid for the number of working hours for which he/she is entitled to be absent at the appropriate hourly rate. Where agency workers exercise this right, it is the temporary work agency that must pay the worker, rather than the hirer.

Who benefits from the right to time off?

Again, the right to time off will apply not only to all employees but also to those agency workers who have worked in the same role with the same hirer/end-user for 12 continuous weeks provided they are still working in the same role and there have been no breaks between assignments or during an assignment except for certain specified breaks.

The same rights will also apply to individuals who are both foster parents and approved prospective adopters and who have been notified that a child is to be, or is expected to be, placed with them in a fostering for adoption placement. However, where a child has already been placed with a foster parent when they are notified that that the child will be placed with them for adoption, they will not benefit from the right to time off.

What evidence is required?

An employer or, in the case of an agency worker, either or both of the relevant temporary work agency and hirer, may refuse to allow individuals adopting on their own to take paid time off unless, when requested, the individual gives the employer a document showing the date and time of the appointment and that it has been arranged by or at the request of the adoption agency.

Employers may refuse to allow individuals adopting jointly with another person to take paid or unpaid time off, as appropriate, unless they provide a signed declaration confirming whether they have elected to take paid time off or unpaid time off and a document showing the date and time of the appointment and that it has been arranged by or at the request of the adoption agency. Electronic documents and declarations will suffice for these purposes.

What if the employer refuses to give the employee time off?

Again, it appears possible for employers to refuse to give individuals time off work where it would be reasonable to do so in the particular circumstances. Where an individual is unreasonably refused paid time off to attend an adoption appointment, he/she may bring a claim in the employment tribunal for an amount of compensation equal to twice the remuneration to which they would have been entitled if they had not been refused the time off. If the employer or temporary work agency has failed to pay the whole or part of the remuneration to which the individual was entitled for such paid time off, he/she may bring a claim for the unpaid balance against the employer or temporary work agency.

If an individual is unreasonably refused unpaid time off to attend an adoption appointment, he/she may bring a claim in the employment tribunal for an amount of compensation equal to twice their hourly rate of pay for each working hour they would have been entitled to be absent.

Where a claim by an agency worker for unreasonable refusal to time off is successful, the tribunal will apportion the compensation payable between the hirer and the temporary work agency as it deems just and equitable taking into account their respective responsibility for the refusal.

Employees and agency workers will also be protected from being subjected to a detriment by their employer, temporary work agency or hirer arising from their exercise of the right to paid or unpaid time off to attend an adoption appointment. Employees, but not agency workers, will also be deemed automatically unfairly dismissed if they are dismissed and the reason or principal reason for the dismissal relates to, or the dismissal takes place in circumstances relating to, the right to paid or unpaid time off to attend adoption appointments (even if they have not completed two years’ continuous service with their employer).

What do employers need to do?

Employers will need to ensure they comply with appropriate requests for time off and would be well advised to update their family leave policies to reflect the new statutory requirements and any enhanced rights to time off they wish to offer to their employees as well as ensuring that managers are aware of the new rights which employees and agency workers will now have.