Rights to family leave and pay for employees

By Camilla Palmer, of Leigh Day & Co. Solicitors

The summary below covers statutory rights only. Many companies provide more generous contractual terms and they should not discriminate against civil partners or on grounds of gender or sexual orientation when granting these rights.

Maternity Leave
Adoption Leave
Paternity Leave
Parental Leave
Time off for dependents
The right to request flexible working
Surrogate parents
Benefits

Maternity leave

Who qualifies: the birth mother of a child

Brief description: 52 weeks leave for all employees. Most will qualify for statutory maternity pay of 90% of full pay for 6 weeks and then a flat rate (which increases every year) for 33 weeks.

Adoption leave

Who qualifies: one of the two adoptive parents, who may both be the same sex.

Brief description: 52 weeks leave provided s/he has been employed for 26 weeks at the qualification date. Most will qualify for statutory adoption pay for 39 weeks at a flat rate (which increases every year).

Paternity leave

Who qualifies: Fathers (biological and adoptive) and husbands; civil partners; partners of either sex who live with the mother in an enduring family relationship

Brief description: Two weeks leave at a flat rate of pay for partners who have been employed for 26 weeks at the qualification date.

Parental leave

Who qualifies: The birth or adoptive parents of a child; anyone who has or expects the have “parental responsibility” for the child; “commissioning” parents in a surrogacy arrangement can take parental leave when the birth certificate has been amended to show them as the parents following a parental order.

Brief description: 13 weeks’ unpaid leave for employees with a year’s service to look after a child under 5 (or under 18 if disabled).

Time off for dependants

Who qualifies: A dependant is a spouse or civil partner, a child or parent or someone who lives in the same house as the employee; or someone who “reasonably relies” on the employee if they fall ill even if they do not live with them

Brief description: Unpaid reasonable time off

The right to request flexible working

Who qualifies: Carers for children if they are the mother, father, adopter, guardian or their spouse, civil partner or partner (i.e. living as if married or a civil partner).
Carers for adults are employees who are married to, partner or civil partner or who live at the same address as the adult in need of care.

Brief description: The right for employees with 26 weeks’ service to ask to work flexibly, e.g. part time; working from home etc. Mothers who are refused may have a claim for indirect sex discrimination.

For more detailed information on flexible working see:
www.workingfamilies.org.uk
and www.direct.gov.uk

Surrogate parents

Can access all family rights above except maternity leave.

Benefits:

Child benefit
A surrogate parent can claim CB if s/he is responsible for a child i.e. the child lives with you, or you contribute to the costs of its upbringing.

Child tax credit can be claimed if you have 'main responsibility' for a child - again this has an ordinary meaning, and if the child normally lives with you then you can claim (with some exceptions, eg the child is 'looked after' by the LA, or the LA fund the child's care eg you are a foster carer.)

Low income parents
If you meet the other conditions, you can get a Sure Start Maternity Grant (even if one has already been given to the birth mother).

During parental leave the normal rules would apply. Income Support might be payable if the person was on benefits immediately before parental leave. As well as meeting the specific conditions for parental leave, you would also need not to have a partner who works 24 hours or more a week, not have savings of more than £16,000 etc.

As for Housing Benefit and Council Tax Benefit, again you are treated as responsible for a child, and the child can be included in the calculation, if the child 'normally lives' with you. If you get child benefit, you are treated as having responsibility.