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These FAQs set out the common questions and pitfalls faced by employers when dealing with family leave and associated rights. The additional documents referred to are designed to assist you further. Please note that some documents are available to all readers whilst others are locked and only accessible to HR Protect clients. To become a retainer client or to find out further information please click here.

What family leave do we need to provide our employees?

Family leave and rights have gradually been extended over the years, including most recently the addition of parental bereavement rights in 2020.  Now employees have a number of rights which relate to family leave.  Broadly speaking, these are: adoption leave and pay; pregnancy and maternity leave, pay and rights; paternity leave and pay; parental leave; shared parental leave; time off for dependents and; parental bereavement leave.  In addition, all employees are able to request flexible working after 26 weeks’ continuous employment.

HR Protect customers can access detailed guidance, template letters and policies.  For a summary of the family friendly rights please see: How to guide: Family friendly rights overview.


What are the main similarities and differences between adoption leave and maternity leave?

Both are entitled to up to 52 weeks of leave and 39 weeks of statutory pay and to take time off for adoption or ante-natal appointments.  See AD7: Time Off for Adoption Appointments Policy and MAT11: Time Off for Antenatal Appointments Policy.  Similarly, once the leave has ended, both are entitled to return to the same job or a suitable alternative and protected from dismissal or detriment due to having taking adoption/maternity leave.  Employers are entitled to minimum notice from their employees if they intend to take adoption or maternity leave.

However, employers have additional health and safety obligations in relation to pregnant employees and not all adoptions are protected under the law.  For example, some private adoptions are not covered by the legislation.  See AD1: How to guide – Adoption for details and MAT1: How to guide – Pregnancy and maternity for details.


What notice are we entitled to receive from our employees who want to take maternity leave?

To qualify for statutory maternity pay, an employee must notify their employer of their pregnancy by no later than 15 weeks before they are due to give birth.  The employee should also provide a certificate from a doctor or midwife.  This is usually done using a MAT B1 form.  Full details can be found in MAT10 – Maternity Policy.

Is it ok to ask an employee on maternity leave to return to work to attend training?

Yes, employees on maternity leave are permitted to return to work for up to 10 days without ending their maternity leave.  These days are known as ‘keeping in touch’ (KIT) days.  Both the school and the employee must agree for a KIT day to be taken. For a letter inviting an employee to a KIT day, please see: MAT7: Request for employee to attend a KIT day

What is the difference between paternity and parental leave?

Paternity leave entitles an employee to a maximum of 2 weeks’ leave within the first 56 days following the birth/placement for adoption of their child and is available to the child’s father or spouse of the mother so that they can care for their child.  Statutory paternity pay is available for a maximum of 2 weeks.

Further details of paternity leave can be found at PAT1: How to guidance and PAT3: Paternity Policy.

In contrast, parental leave allows a parent to take up to 18 weeks’ unpaid leave to care for their child.

Minimum service, notice and evidential requirements must be met for both types of leave.

An employee needs to take emergency time off to look after their child. Is this covered by any family rights?

Yes.  All employees, regardless of their length of service, have the right to take a reasonable amount of unpaid time off where it is necessary to care for a dependent.  A dependent includes the spouse, civil partner, child and parents of the employee and others who reasonably rely on the employee for care or assistance.    However, this right only applies in five specified circumstances

To avail themselves of this right, an employee must inform you as soon as reasonably practicable of the need to use this right and how long they expect to be absent.

The legislation is intended to cover a situation where there is an immediate crisis.  Therefore this right would not cover, for example, time off to take a child to a planned medical appointment but this could potentially be covered by parental leave.  It would also not cover a situation where the employee needed to take time off to stay home because a pipe had burst and their house had been flooded.  A compliant policy is available at TD2: Time Off for Dependants Policy.

How do we respond to a flexible working request and what are the potential pitfalls?

An eligible employee i.e. an employee who has 26 weeks’ continuous service and who has not made a flexible working request in the last 12 months, can apply to change their hours, times or place of work. These 3 wide categories would therefore cover a request to just work term-time hours as it would be a change to the employee’s hours and similarly a request to work one day a week from home would also be covered as it would be a change to the employee’s place of work.

The flexible working request must also adhere to certain formalities, including that it must be dated and in writing.

Once the request has been received an employer must provide their decision within 3 months.  The employer may be able to accommodate the flexible working request fairly easily in which case they can simply advise the employee that their request has been agreed.  However, it is unusual for an employer to be able to agree to a request without first meeting the employee and discussing the proposed changes and their impact Our flowchart F2: Flexible working flowchart sets out what should happen and when.

If a request cannot be immediately agreed then the next step is to acknowledge the request and invite the employee to a meeting – see F4: Acknowledgment of flexible working request and invitation to meeting for a letter to send to the employee and F13: Guidance: conducting meeting to consider flexible request for specific advice on how to conduct the meeting.

If you are not sure whether the request can be accommodated, the request can be accepted but conditional upon the employee working a successful trial period.

A request can be rejected but only for one of the eight permitted reasons.

Where a request is rejected, the employee should be permitted to right to appeal.

If a flexible working request is agreed then the proposed changes to the employee’s contract are permanent, subject to any trial periods.  To avoid any confusion (and to comply with legislation which requires that certain contractual changes are confirmed to the employee in writing) it is sensible to confirm any changes in writing.  For a letter to send to the employee confirming that the flexible working request in writing see F5: Confirmation of acceptance of flexible working request.

The potential difficulties for employers are:

  • Not complying with the time-limits;
  • Not meeting the client prior to rejecting the request;
  • Unreasonably rejecting the request/not having evidence to support the decision;
  • Not using one of the eight permitted reasons to decline the request;
  • Not allowing an appeal

Failure to properly respond to a flexible working request can result in the employee resigning and bringing a claim of constructive dismissal and/or discrimination.

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