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The right to parental leave entitles all eligible employees who have completed one year's qualifying service to take a period of unpaid leave to care for each child born or adopted on or after 15 December 1994 (on or after 15 December 1981 in the case of a disabled child).
The right applies to mothers and fathers and to a person who has obtained formal parental responsibility for a child under the Children Act or its Scottish equivalent. Parents are able to start taking parental leave as soon as the child is born or placed for adoption, or as soon as they have completed the required one year's qualifying service with their employer, whichever is later.
Changes to the right were introduced on 10 January 2002, which benefit parents of disabled children and parents of children aged under 5 on 15 December 1999 (the date the right was first introduced).
Key elements of parental leave which apply in every case 13 weeks' parental leave for each child; 18 weeks for each child entitled to a disability living allowance; parents of disabled children born on or after 15 December 1981 are able to use their leave over a longer period, up until the child's 18th birthday; the employee remains employed while on parental leave; some terms, such as contractual notice and redundancy terms, still apply; at the end of parental leave an employee is guaranteed the right to return to the same job as before, or, if that is not practicable, a similar job which has the same or better status, terms and conditions as the old job; where the leave taken is for a period of 4 weeks or less, the employee is entitled to go back to the same job.
Key elements of parental leave which apply in different cases:
In the case of children born or adopted on or after 15 December 1999, the employee's rights to take the leave last until the child's fifth birthday or until five years have elapsed following placement in the case of adoption.
Parents must have completed one year's continuous service with their current employer.
In the case of children born or adopted between 15 December 1994 and 14 December 1999, the employee's rights last until 31 March 2005, or in the case of adoption until the child's 18th birthday if that is sooner.
Parents must have completed one year's continuous service with their current employer, or a previous employer, between 15 December 1998 and 9 January 2002.
Agreements between employers and employees:
Wherever possible, employers and employees should make their own agreements about how parental leave will work in a particular workplace. They may choose to do so through individual, workforce or collective agreements. In small firms especially, where employers and employees work closely together, the needs of each can be agreed on an individual basis.
Agreements can improve upon the key elements set out above but they cannot offer less. For example, employees must be able to take the equivalent of 13 weeks' leave from work (18 weeks for parents of disabled children), whether the local scheme allows this to be in days, weeks, one long block or as reduced working hours or a mixture of all of these.
Agreements can also cover matters such as how much notice of parental leave must be given, arrangements for postponing the leave when the business cannot cope or could be harmed by the employee's absence, and how it should be taken. Where employers and employees have not entered into an agreement about these matters, or until they have done so, the fallback scheme set out in the Regulations applies.
Collective or workforce agreements can set aside the fallback scheme and replace it with a different set of arrangements entirely.
Where different arrangements are agreed with individuals, it is open to the individual to exercise his or her rights under any part of the Regulations, including the fallback scheme, if these are better in any particular respect.
The fallback scheme
The fallback scheme in the Regulations provides for employees to take parental leave in blocks or multiples of one week after giving 21 days notice up to a maximum of four weeks leave in a year subject to postponement by employer for up to 6 months where business cannot cope but leave cannot be postponed when the employee gives notice to take it immediately after the time the child is born or is placed with the family for adoption.
Parents of disabled children have the flexibility to take leave a day at a time or longer if they wish. A disabled child is a child for whom disability living allowance is awarded.
Employers are not required to keep statutory records of parental leave taken, although many will want to do so for their own purposes.
When an employee changes jobs, employers are free to make enquiries of a previous employer or seek a declaration from the employee about how much parental leave he or she has taken.
Parents of children born or adopted between 15 December 1994 and 14 December 1999 (15 December 1981 and 14 December 1999 in the case of a disabled child), who are relying on a period of service with a previous employer in order to qualify for parental leave, should give their current employer notice of the relevant period they wish to be taken into account when determining eligibility for leave.
An employer can ask the employee to provide evidence of the period he or she worked for the previous employer.
Employees have the right to go to an employment tribunal if the employer prevents or attempts to prevent them from taking parental leave. An employee who takes parental leave is also protected from victimisation, including dismissal, for taking it.