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A quick guide to family leave and pay entitlements in the UK

The latest announcement from the Duke and Duchess of Sussex that they are expecting their first child and the recent return of the Duchess of Cambridge from her maternity break demonstrate that the Royal Family, similarly to other British parents, is not a stranger to tackling a wide range of parental responsibilities along with their official duties.

This prompted us to set out the main entitlements in relation to family leave and pay available to working parents under the UK laws.

Provided that the employee meets specific eligibility criteria, they have the right to the following:

  • Statutory Maternity Leave (SML): Women can take up to 52 weeks of SML. It is made up of Ordinary Maternity Leave (the first 26 weeks) and Additional Maternity Leave (weeks 27 to 52). SML is not compulsory apart from the first two weeks after the baby is born (or four weeks if the woman works in a factory). Whilst on SML women can claim:
    • Statutory Maternity Pay (SMP): It is paid for up to 39 weeks and is 90 per cent of the employee’s average weekly earnings (before tax) for the first six weeks followed by the lower of £145.18 or 90 per cent of their average weekly earnings for the next 33 weeks.
    • Maternity Allowance: It is payable by the government and applies to those employees who do not qualify for SMP.
    • Company enhanced maternity pay: Many employers voluntarily offer more generous maternity pay arrangements which eligible employees can claim.

Women adopting a child or having a child through surrogacy are not entitled to SML but can get Statutory Adoption Leave and Pay instead.

  • Shared Parental Leave (ShPL): This enables parents having a baby or adopting a child to share up to 50 weeks of leave and up to 37 weeks of pay. ShPL is paid at the lower rate of SMP (i.e.£145.18 a week or 90 per cent of the employee’s average weekly earnings, whichever is lower).
  • Paternity Leave and Pay: Paternity Leave is a period of either one or two consecutive weeks that fathers (or partners) can take off from work to care for their baby or child. The statutory weekly rate of Paternity Pay is £145.18 or 90 per cent of the employee’s average weekly earnings (whichever is lower).
  • Parental leave: This is unpaid. It can be taken for up to 18 weeks to look after a child up to their 18th birthday. Unless agreed otherwise with the employer it can only be taken up to four weeks for each child in a year.
  • Time off for dependants: Employees are allowed time off to deal with emergency situations (e.g. a hospital appointment) involving a dependant. A dependant could be a spouse, partner, child, grandchild, parent, or someone who depends on the employee for care. It is unpaid unless the employer agrees otherwise. There is no set amount of time that can be requested by the employee to deal with emergency situations although it should to be exercised in a reasonable manner, which usually equates to one or two days.
  • Flexible working: Employees who have 26 weeks’ continuous employment are entitled to make a request for flexible working. Flexible working can include a wide range of options, such as reduction of hours, job-sharing, working from home, working compressed hours, flexitime or term-time working.

Many employers recognise that the statutory entitlements are no longer sufficient in many sectors to attract a skilled and qualified workforce. In the circumstances they are prepared to offer their employees a wide range of family-friendly benefits, enhanced levels of family leave and pay, as well as flexibility in their working arrangements. No matter what option the employer chooses, it is important that they have clear family policies in place outlining the relevant process and eligibility criteria and that those policies are applied consistently across the organisation.

A quick guide to family leave and pay entitlements in the UK

Non-executive directors can be liable for a detriment suffered by a whistleblower

In the recent case of Timis and another v. Osipov, the Court of Appeal confirmed that an individual employee, along with the employer, can be held liable for the detriment of dismissal arising from making a protected disclosure (commonly known as whistleblowing).

Facts

Mr Osipov was the CEO of International Petroleum Ltd (IP Ltd). During his time as CEO he made a number of disclosures related to corporate governance and compliance with Nigerien law. He was subject to detriment and then dismissed by two non-executive directors of IP Ltd, Mr Sage (a non-executive director with managerial functions) and Mr Timis (a non-executive director and the company’s largest individual shareholder). Mr Sage acted on instructions from Mr Timis when dismissing Mr Osipov.

Mr Osipov brought a claim to the Employment Tribunal alleging that he had been unfairly dismissed and subjected to detriment for having made protected disclosures. He succeeded with both claims and Mr Sage and Mr Timis were held jointly and severally liable for his losses amounting to over £1.7 million. IP Ltd and both directors appealed the decision to the Employment Appeal Tribunal (EAT). The directors’ appeal was based on the fact that they should not be liable for the losses flowing from the dismissal. They were unsuccessful and subsequently appealed the EAT decision to the Court of Appeal.

Decision

The Court of Appeal has agreed with the previous decisions of the tribunals and backed the original award made to Mr Osipov. In making the decision the court considered whether an individual worker can be held liable for a detriment which takes the form of dismissal on the ground of making a protected disclosure despite the provisions of the Employment Rights Act (ERA), which excludes a detriment claim if the detriment “amounts to dismissal itself”.

The court held that there is nothing in the wording of the ERA that “excludes from individual liability detriments amounting to termination of the working relationship”. In other words, there is no reason for fellow workers to be relieved of liability if they subject another worker to a detriment which results in a dismissal.

Comment

This decision has far-reaching consequences. It confirms that individual employees can be liable for their actions towards whistleblowers. In practice this may result in a new trend, where the whistleblowing claims are brought against both the employer (unfair dismissal claim) and the individual who decided to dismiss the employee (detriment claim). It is paramount therefore that, in mitigating the risk of such claims, employers are prepared to provide adequate training to the managers and directors investigating and making decisions relating to protected disclosures and that they have clear whistleblowing policies in place to ensure that the appropriate procedures are followed.

Non-executive directors can be liable for a detriment suffered by a whistleblower

Ensuring employees are aware of pension choices – points to consider

Thankfully most employers are aware of their statutory obligations when advising employees of their pension benefits, especially in relation to auto enrolment or changes in the company pension scheme.

However, the recent decision of the Deputy Pensions Ombudsman in a complaint by the estate of a deceased employee against Belfast City Council (BCC) highlights that an employer’s obligations can go further than these statutory examples. The Ombudsman decided that employers are also required to make appropriate enquiries and provide sufficient advice to employees to ensure that they are able to make the best choices regarding their pension benefits.

Background

Mr Y was an employee of BCC. He was diagnosed with cancer in 2012. In May 2013, he was recommended for early retirement on grounds of permanent ill-health. His three-month notice period started on 26 May 2013 and was due to end on 17 August 2013. Unfortunately, on 24 July 2013 Mr Y was informed that his diagnosis was terminal. According to Mrs Y, she telephoned BCC the same day to tell them of Mr Y’s condition and enquired about the option of taking some of his benefits before his termination date so they could take a family holiday prior to him receiving further treatment. BCC disputed this position. They argued that Mrs Y only requested payment of a lump sum for the holiday and had never asked that Mr Y’s wider benefits be brought forward.

Mr Y died three days before the expiry of his notice period. This meant that Mrs Y was entitled to a death in service payment. This was significantly lower than the benefit for death in retirement to which she would have been entitled if Mr Y’s employment had ended.

Decision

The Ombudsman favoured Mrs Y’s account and held that BCC “ought reasonably to have enquired” as to whether Mr Y wished to waive his remaining notice period, even though Mrs Y had not specifically requested about this.

Implications for employers

Employers should be aware that pension scheme members will usually find it more cost-effective to complain to the Pensions Ombudsman than to sue in the courts. An Ombudsman may aim to reflect what is fair and reasonable in the circumstances so Ombudsman decisions are less predictable than those of the courts, which are bound by existing case law and rules of evidence.

This decision suggests a widening of the employer’s obligations to advise employees about different options available when discussing pension benefits. It means that once an employee enquires about their pension benefits or communicates a relevant change in circumstances, employers should ensure they highlight the options available – while avoiding giving unauthorised financial advice!

The decision does not sit entirely easily with previous authority that employers do not have an implied duty to warn or advise employees about the potential financial consequences of decisions affecting their pension benefits. However, the House of Lords has held that an employer could have an implied obligation to warn its employees about their pension rights if that right has not been negotiated individually or the employee cannot reasonably be expected to be aware of the particular right unless it is drawn to their attention. Given the complexity of many pension schemes, it would be unwise to rely on employees being aware of all their options.

In light of the above, employers should consider carefully what and how they communicate to their employees about pension benefits. When in doubt, they should seek professional advice to limit the risks of providing inadequate or incorrect information. A practical answer may be to adopt pre-agreed checklists to support benefit payment enquires in common situations, such as actual or expected deaths in service.

Ensuring employees are aware of pension choices – points to consider

Only 6% of Brits work 9am-5pm

A recent survey from YouGov has found that only 6% of Brits now work 9am-5pm and nearly half of those surveyed worked flexibly through job-sharing flexitime or compressed hours. The study shows that the most preferred working hours are 8am-4pm (chosen by 37% of the respondents) with another 21% saying they would prefer to start work even earlier at 7am and finish at 3pm.
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Only 6% of Brits work 9am-5pm