Following our previous features on maternity leave and flexible working, we round off our look at family-friendly policies by focusing this month on parental leave, compassionate leave and time off for caring for dependants.

Part 1 focused on maternity, adoption and shared parental leave, while part 2 looked at best practice for handling flexible working requests.

Whilst there are a number of statutory requirements to be aware of in respect of the policies we cover, there is also quite a lot of room for discretion by you, as an employer. Offering leave or paid time off via your policies that goes beyond your statutory obligations can be a good way to enhance employee relations and show your commitment to family-friendly practices.

Parental Leave

What is parental leave?

Parental leave is leave which a parent or person with parental responsibility for a child can take for the purpose of caring for a child. Using the leave for another purpose outside of this, unless it has been agreed with the employer, could be treated as an act of dishonesty which may trigger an employer's disciplinary procedures.

In reality, caring for a child could cover a range of matters such as helping to settle a child into school or other new childcare arrangements, make arrangements for their welfare, or simply as a means to balance out work and family life so allow more time to be spent with their children.

Entitlement

By law, any employee with one year of continuous employment is entitled to 18 weeks' unpaid leave to care for a child for whom they have, or expect to have, parental responsibility for.

Each parent has the right to take 18 weeks for each child up to their 18 birthday. Therefore in a family with two children under the age of 18, each parent will have entitlement to 36 weeks of parental leave. However, unlike with shared parental leave, the right to parental leave is an individual one and therefore leave cannot be shared.

Of note, the entitlement to 18 weeks of leave is per child and not per employer. Therefore, if an employee has taken a period of parental leave, and moves to a new employer, they will not automatically renew their full entitlement. Whilst, for obvious reasons, this will be difficult to manage, you may wish to seek a declaration from the employee that they have not availed of any previous period(s) of parental leave with another employer.

In addition, unless your policy specifies otherwise, each parent cannot take more than 4 weeks leave per child in any one year.

Total leave entitlement may be split into a number of shorter periods but parental leave in respect of a non-disabled child cannot be taken in blocks of less than one week, unless your policies allow for this.

What constitutes one week's leave will be determined by the period during a week which an employee would normally be required to work. Therefore, if an employee's normal working week is Monday to Friday, then a week's leave for these purposes will be five days. If an employee, for example, works just two days per week, one week's leave would equate to two days.

For employees with irregular working patterns (for example, the number of hours they work varies from week to week or the employee works under a term-time arrangement) this may require calculating an average. This will be done by calculating the total of the periods for which the employee is normally required to work in a year divided by 52.

Note that foster parents, self-employed parents, agency workers and contractors are not entitled to parental leave.

Can Parental Leave be taken alongside other family leave?

The entitlement to parental leave is in addition to the statutory entitlements to maternity, paternity, adoption and shared parental leave (all of which have been covered in recent articles). Despite the similar name parental leave is unrelated to the more recently introduced shared parental leave.

Parental leave can be taken immediately after an employee's maternity, paternity or adoption leave ends provided the correct notice is given.

Terms and conditions during parental leave

Unlike maternity adoption and, paternity leave, employers are under no legal obligation to pay employees during a period of parental leave.

As the employment contract still subsists, the employee's continuity of service and statutory holiday entitlement will continue to accrue during parental leave. However, rights to accrue contractual payments or benefits will very much depend on the terms of the employee's contract of employment. Contractual terms and conditions relating to notice period, redundancy payments and disciplinary and grievance procedures will also continue to apply.

Implied duties of trust and confidence and fidelity will also continue to apply between employer and employee.

Importantly, if the employee is bound by contractual provisions restricting their ability to work for another employer during their employment, this will also continue to apply.

Where an employer is considering withholding bonus payments solely on the basis that the employee is not in active employment at the time it is paid, consideration should be given to how this might impact on someone on parental leave. Given that more women than men are likely to avail of parental leave, there is a risk that such restrictions on bonus provision could give rise to an indirect sex discrimination claim. It will, therefore, be important to consider what the bonus is actually being paid for, the specific scheme rules that apply, and whether bonus for employees who have taken parental leave should instead be calculated pro-rata to take account of any period spent out on parental leave.

Requesting parental leave

The Maternity and Parental Leave etc. Regulations (Northern Ireland) 1999 outline a default scheme for parental leave that applies in the absence of any contractual agreement between employer and employee. The regulations outline notice employees are required to give and impose obligations on employers around postponing leave. In general, an employee must provide no less than 21 days' notice of their intention to take parental leave, and provide the dates when that leave will begin and end.

While you can as an employer postpone a period of requested leave if you believe it will disrupt your operations, there is a process to be followed to consult with and give notice to the employee. However, there is no ability to postpone leave which the employee seeks to take immediately on the birth or adoption of a child. In most cases, however, the employee is likely to opt to take paid paternity leave first in any event.

Enhancing pay and benefits during parental leave

As outlined above, employers are under no legal obligation to pay employees during a period of parental leave. As above, in the absence of employer policy the default statutory scheme will apply.

However, it is preferable to set up a policy to deal with parental leave. In order to incentivise employees to avail of parental leave, and as a means of boosting family-friendly employer status, your organisation may decide to offer payment. This could be payment of full salary or a portion of it for either all, or part of, the parental leave period. Some employers may decide to link entitlement to pay with a minimum service requirement thus also acting as a reward for loyalty to the company. Of course caution should also be exercised when linking benefits to length of service as, in certain circumstances, it could give rise to claims of indirect age discrimination.

There are also other ways in which your organisation may wish to enhance parental leave benefits outside of pay. This may include:

• Allowing for longer periods of parental leave in each year i.e. providing for employees to take more than 4 weeks leave per year.
• Allow for periods of parental leave to be taken in blocks of less than one week in all circumstances
• Extending entitlement to take parental leave to foster carers and grandparents
• Removing the 1-year service requirement.

Notably, you cannot implement a parental leave policy which is in any way less favourable to that set out in the default scheme unless it is done so by way of a workforce or collective agreement. In all circumstances, it is unlawful to seek to exclude to right to take parental leave altogether or to seek to reduce the leave entitlement to less than 18 weeks, to lower the upper age limit of the qualifying child or increase the minimum service requirement in order to be eligible to take the leave.

Returning to work from parental leave

Employees returning from parental leave enjoy the same right as someone returning from ordinary maternity leave. In other words, they will be entitled to return to the same job in which they were employed before their absence in circumstances where they have taken a period of parental leave lasting up to four weeks, unless that period was immediately preceded by a period of statutory leave which included a period of additional maternity leave or additional adoption leave. This can be made up of a single isolated period or consecutive periods.

Outside of the circumstances set out above, employees will still have the right to return to the same job they were employed in before taking parental leave unless it is not reasonably practicable for the employer. If it is not reasonably practicable, in the same way as with additional maternity leave, employees will be entitled to an alternative role that is suitable and appropriate.

Whether an employee is returning to work in the same role or an alternative post, they are entitled to return on terms and conditions no less favourable than those they have been on before they were absent.

Exposure to claims

Employers cannot shorten or split an employee's leave into multiple periods, or postpone a requested period more than once. Unreasonably postponing a requested period of parental leave or preventing, or attempting to prevent, the taking of parental leave could leave your organisation exposed to tribunal claims.

It should be noted that where an employer has prevented or attempted to prevent an employee for taking parental leave, a Tribunal has the power to make a declaration to that effect and award such compensation as it considers to be just and equitable.

In addition, if an employee is found to have been dismissed in circumstances where the reason or principal reason was that they took or sought to take parental leave, the dismissal will be deemed automatically unfair.

Time off for dependants

Under Article 85A of the Employment Rights (Northern Ireland) Order 1996 employees have a statutory right to a reasonable amount of unpaid time off to take action necessary to provide assistance for dependants. There is no minimum service requirement and it is at your discretion whether this leave is paid or unpaid.

A dependant is defined as a spouse or civil partner, child, parent or someone living in the same household who reasonably relies on the employee for assistance or to make care arrangements when they fall ill, are injured or assaulted.

The legislation does not cover planned time off to care for dependants so planned medical appointments fall outside this entitlement. You may, therefore, wish to consider including a procedure for dealing with such appointments.

Compassionate Leave

There is no legal requirement to provide employees with compassionate leave for bereavement or illness. Offering some form of compassionate leave, however, is an opportunity to reflect your organisational values and show consideration for your employees.

Given the wide scope of situations into which compassionate leave could extend, a clear policy will give your employees and managers clarity, ensure consistency across the organisation and therefore minimise complaints.

You should consider outlining the bereavements to which the leave will extend to (e.g. immediate family, extended family, or even pets?}, the number of days leave available (the amount of leave given may differ depending on the family member who has passed away}, whether the leave will be paid or unpaid and how this should be requested/approved.

On-going developments

It is worth being aware that in England and Wales the Parental Bereavement (Leave and Pay} Act 2018 is expected to come into force in 2020. It will introduce an entitlement for employed parents from day one of service to two weeks leave on the loss of a child under 18, or a stillbirth after 24 weeks of pregnancy. It also introduces bereavement pay for the period subject to some eligibility criteria.

As employment is a devolved matter in Northern Ireland this is unlikely to apply here from the same date, particularly in the absence of an Executive to make legislative changes. However, some employers may wish to reflect the changes being brought in England and Wales in their policy anyway.

Conclusion

As an employer you have discretion in determining policies around dependant and compassionate leave, and to a lesser extent with parental leave. Enhancing parental leave beyond the statutory requirements, providing compassionate leave and/or offering paid time off to care for dependants can all help enhance employee relations and your brand as a family-friendly employer. As with all policies we have discussed through our features it is important that you develop policies that reflect the values and operational characteristics of your organisation. We recommend training and empowering your line managers to handle requests and apply policies consistently.