Can Employers Refuse Parental Leave?

As an employer you are legally bound to consider any request for parental leave made by an eligible employee, and undoubtedly will want to encourage a healthy work/life balance, although equally you will need to ensure that any such request does not significantly interfere with the running of your business.

The following guide for employers looks at the rules relating to parental leave in the workplace, from the basis upon which an employee can request parental leave to the grounds upon which this can be reasonably refused.

 

What is parental leave?

Parental leave is designed to provide working parents with more time to spend with their children. This could include visiting new schools, settling their children into new childcare arrangements, or anything else to do with looking after their child’s welfare, such as taking their children to visit grandparents or even looking after them during school holidays.

Eligible employees are entitled to a total of 18 weeks’ unpaid parental leave for each child, including any adopted children, up to their 18th birthday. Both parents can take up to 18 weeks’ parental leave for each child.

The limit on how much parental leave each parent can take in a single year is 4 weeks per qualifying child. This annual leave entitlement does not have to be taken all at once, although it must usually be taken as whole weeks rather than individual days, unless the child is disabled.

If an employee receives a disability living allowance or personal independence payment for their child, they can take parental leave more flexibly, for example, they could take 1 or 2 days’ leave rather than blocks of a week at a time.

 

Who is entitled to parental leave?

An employee will qualify for parental leave if that individual meets all of the following requirements:

• They have been employed by you for a period of not less than a year
• They are not classed as either self-employed or a ‘worker’, for example, an agency worker or contractor
• Their child, or adopted child, is under the age of 18
• They are named on the child’s birth or adoption certificate, or they have or expect to have parental responsibility.

 

The biological mother of a child automatically has parental responsibility for the child and so does the father, if the mother is married to him. If the parents are not married, the father will automatically be entitled to take parental leave for the child in question if his name appears on the birth certificate.

In all other cases, the employee would need to have a parental responsibility agreement or order in place to say that they are legally responsible for the child.

 

Can parental leave be carried over to a new job?

Parental leave applies to each qualifying child and not to an individual’s job. This means an eligible employee who has already taken a period of unpaid parental leave with a previous employer can carry over any remaining entitlement to a new employer, but will not be entitled to more, unless otherwise agreed.

The employee must also have been continuously employed in their new job for not less than a year before they will be allowed to take any further leave.

As an employer, you are entitled to ask a new-starter, as well as their previous employer, about the amount of any parental leave already taken. However, there is no duty on employers to keep records relating to unpaid parental leave or to provide this information if requested by a subsequent employer.

 

How is parental leave calculated?

When calculating parental leave, each year begins from the date the employee first became entitled to parental leave for the child in question, and each successive period of 12 months beginning on the anniversary of that date.

When calculating a week for the purposes of the maximum 4-week annual leave entitlement, this will equate to the length of time an employee is normally required to work over a period of 7 days.

Where an employee works a normal 5-day week, one week of parental leave will equate to 5 days. However, if an employee works irregular weeks, the number of days in a week will need to be averaged out over the course of 52 weeks.

For example, where an employee works Monday to Friday during term time (39 weeks) and Monday to Wednesday during school holidays (13 weeks) the calculation would be as follows:

• Total of annual work period (in days):
• Term time: 39 x 5 = 195
• Working during school holidays: 13 x 3 = 39
• Total = 234 days
• Average per week: 234/52 = 4.5 days.

 

In the given example, one week’s parental leave would amount to 4.5 days, giving a total of 18 days per year. For the employee working 5 days during term-time this would equate to 3 calendar weeks plus 3 days for the fourth week, while during the school holidays this would equate to 6 calendar weeks.

 

What rights does an employee have on parental leave?

The basic employment rights of an individual taking parental leave will usually be protected throughout this period, including any redundancy and notice rights. This means the employee will also continue to accrue paid holiday entitlement and can take any holiday they have built up before or after their period of leave.

In addition, as long as the employee takes no more than 4 weeks or less of unpaid parental leave, they will have the right to return to his or her job. If an employee takes more than 4 weeks leave, and it is no longer reasonably practicable to give them back their old job, they will still have the right to a suitable alternative job.

If an employee unreasonably refuses a similar job on the same or better terms and conditions, you can treat this as their resignation. On the other hand, if you do not allow an employee to return to the same job, or you do not offer them a suitable alternative job on similar terms and conditions, they may have a claim for unfair dismissal, detriment and/or discrimination against you.

It is also against the law to dismiss an employee, or treat them unfairly, simply because they have made a request for, or take, parental leave.

 

Grounds for refusing parental leave

As long as an employee is eligible, you cannot refuse a request for parental leave. However, you may be entitled to postpone a request for up to 6 months where your business would be unduly disrupted if the employee took leave during their proposed dates. You cannot postpone parental leave for any other reason.

Any request for parental leave must not be postponed where it is to be taken immediately after the birth or adoption of a child. You must also not postpone a request where this would go beyond the child’s 18th birthday, thereby disqualifying the employee from their statutory entitlement in so doing.

Once a request for parental leave has already been postponed, you cannot postpone the employee’s entitlement again, not without their agreement. The length of the new period of leave should also be the same as the original request, unless otherwise agreed.

 

What process should be followed for parental leave?

When submitting a request for parental leave, an employee must provide you with at least 21 days’ notice before their intended start date. If they or their partner are having a baby or planning to adopt, this period of 21 days will run from before the week the baby or child is expected.

The employee is also required to confirm the start and end dates, although this does not need to be in writing unless you specifically require this.

If you postpone the request for parental leave, there is a certain procedure that must be followed. You must provide notice of the postponement in writing no later than 7 days of the request, together with written reasons for your decision. Having consulted with the employee, you must also provide new suggested start and end dates of the period of leave within 6 months of the requested start date.

When dealing with a request for parental leave, you are entitled to ask for proof of the employee’s entitlement to this, for example, by way of a birth or adoption certificate, or even proof of parental responsibility or the child’s disability.

 

What is the difference between parental leave and shared parental leave?

Parental leave refers to an employee’s right to unpaid time off work to look after their child up to their 18th birthday. In contrast, shared parental leave refers to the sharing of maternity or adoption leave between two parents, and for which the parents are often entitled to shared parental pay. To avoid confusion, unpaid parental leave is often described as ‘ordinary parental leave’.

The right to unpaid parental leave is also entirely separate to taking time off to deal with an emergency involving dependants, such as illness or injury. The entitlement to ‘time off for dependants’ allows an employee to take time off work without giving any advance notice if there is an emergency involving their child and no one else is available to care for them.

In either case, ordinary parental leave may be used to supplement time off work. It can also be used before or after any maternity or paternity leave, although the notice rule will still apply. In some cases, taking parental leave after maternity leave may affect an employee’s entitlement to return to the same job, although a suitable alternative job must still be made available.

 

Can parental leave be contracted out of?

The Maternity and Parental Leave etc Regulations 1999 (as amended) provide that, in the absence of any collective or workforce agreement relating to parental leave, an eligible employee will still have a basic entitlement to unpaid leave for each qualifying child up to the age of 18. These are the default provisions.

By law you cannot contract out of these default provisions. These represent an employee’s basic statutory entitlement, where eligible, to 18 week’s unpaid parental leave.

In most cases, however, it can often be beneficial to negotiate some form of collective or workforce agreement, adopting a much more flexible approach to parental leave than that required by law. In this way you can create a system for requests and leave tailored to the needs of both your business and your staff.

For example, you may be happy to allow requests with less than 21 day’s notice where the period of leave is only very short, or for all eligible employee’s to take more than 4 weeks per year or in less than blocks of one week.

You may even want to consider paid parental leave or extending the right to parental leave to those groups of employees who are not otherwise eligible as a matter of law. However, expert legal advice from an employment law specialist should always be sought where agreeing to extend the rights of your workforce, or otherwise entering into a collective or workplace agreement.

 

Need assistance? 

DavidsonMorris’ employment lawyers provide expert support to employers on all aspects of workforce management and employment law compliance. Through our fixed-fee employment advice service, Triple A, employers can access unlimited advice on issues such as parental leave entitlements and dealing with requests. If you have a query about parental leave and your obligations as an employer, contact us.

 

Refusing parental leave FAQs

Can an employer deny parental leave?

An employer cannot deny an eligible employee their statutory right to parental leave in respect of a qualifying child, although a request for leave can be postponed for up to 6 months where this will significantly disrupt the business.

Can employees be refused dependency leave?

An employee is statutorily entitled to time off work to deal with an emergency involving a dependant. Unless the employee was aware of the situation beforehand, such as an advance hospital appointment, an employer should not refuse dependency leave, not even for critical business reasons.

Can employees use parental leave for holidays?

Parental leave is to provide working parents with more time to spend with their children, including time off for holidays. The employee will also continue to accrue paid holiday entitlement during any parental leave and can take any annual leave they have built up before or after their period of parental leave.

Last updated: 4 June 2021