This was written by Joanne Davies, partner at Blake Morgan.
The Children and Families Act 2014 received Royal Assent in March 2014. One of its key provisions, in force from 30 June 2014, was the extension of the right to request flexible working to all employees who meet the eligibility criteria.
From 1 October 2014, the Act also introduces a new right for fathers, partners and parents to take unpaid time off work to attend up to two ante-natal appointments. This provision has not been particularly well publicised to date. However, it is important to be aware of the changes because Staff Handbooks will need to be amended over the coming months and the changes publicised to staff, particularly to line managers who may be dealing with the requests for time off.
So what is the new right?
The right will be available to an employee or agency worker who has a “qualifying relationship” with a pregnant woman or her expected child. This covers the following:
-The pregnant woman’s husband or civil partner.
-The pregnant woman’s partner (including same sex partner) who are in an enduring family relationship with her.
-The father of the expected child.
-One of a same sex couple who is to be treated as the child’s other parent under assisted reproduction legislation.
-The potential applicant for a parental order in relation to a child born to a surrogate mother.
Interestingly, employees do not need to satisfy any qualifying period to exercise this new right, it applies from the first day of employment. The position is slightly different for agency workers, for example, they must have completed their 12 week qualifying period.
Unlike the pregnant woman’s right to paid time off for ante-natal appointments, the new right to time off is unpaid. Employers can however choose to make a payment for the time off and if so, this should be expressly referred to in the Staff Handbook. Note also that the time off is limited to two appointments lasting no more than six and a half hours each.
The Act provides that the individual making the request must comply with certain formalities but only if the employer/ agency/hirer require it. Again this is something else to be considered when amending the Staff Handbook. Will you want the individual to confirm in writing the time and date of the appointment, the nature of the qualifying relationship and that the purpose of the time off is to attend an ante-natal appointment?
Finally, although the right to time off may be refused when it is reasonable to do so, there is no guidance as to when it would be reasonable. An individual who is unreasonably refused time off to attend an ante-natal appointment can bring an Employment Tribunal claim. The remedy for a successful claim is compensation payable at twice the hourly rate for the time the individual could have been absent.
In addition, individuals taking time to off to accompany the pregnant woman to the ante-natal appointment are also protected from being subjected to a detriment and further, employees are protected from dismissal. Any dismissal is automatically unfair and no qualifying period is necessary.
But that’s not all for the Children and Families Act. April 2015 sees the introduction of shared parental leave and pay and significant changes to adoption rights. These developments will require a comprehensive review of family friendly policies in the months ahead.
