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Pregnacy & Maternity and Family Friendly Workplace Rights in Scotland

p.

Midgie Bite #57

Summary of the law on

[*PREGNANCY & MATERNITY *]

*AND FAMILY FRIENDLY WORKPLACE *

RIGHTS IN SCOTLAND

[* 77% of mums surveyed said they have had a negative or possibly ] *discriminatory experience during pregnancy, maternity leave or return to work

0800 081 0070

[email protected]

*For more information, *

*please scan this QR code. *

1

AUTUMN 2016

Contents

*3. *

*How common is pregnancy *

  • *

*17. *

*Additional Leave. *

  • *

*and maternity related Workplace *

  • *

[*Discrimination in Scotland? *]

*19. *

*Model scheme. *

*4. *

*Time Limits for Lodging a Claim. *

*19. *

*Collective. *

*4. *

*ACAS Early Conciliation. *

*19. *

*Employee rights. *

*5. *

*Fixed Fee. *

*20. *

*Time off for dependants. *

*5. *

*Hourly Rate. *

*20. *

*Definition of dependant. *

*5. *

*Legal Expenses Insurance. *

*21. *

*Flexible working. *

*5. *

*No Win No Fee Agreement. *

*22. *

[*Part-time workers. *]

*6. *

*Legislation. *

*22. *

[*Pro-rata. *]

*6. *

*Notification of pregnancy. *

*22. *

*Right to receive written *

  • statement. *

*7. *

[*Ante-Natal Rights. *]

*22. *

*Remedies. *

*8. *

*Maternity Leave. *

*22. *

*Proposals for reforms to assist *

*11. *

[*Statutory Maternity Pay (SMP). *]

  • *

*pregnant women in the *

  • *

*workplace in Scotland. *

*12. *

*Who can claim maternity *

  • *

  • allowance. *

*24. *

*Child Tax Credit and proposed *

  • changes. *

*13. *

*Flexible working. *

*25. *

*Guidance available to employers. *

*13. *

*What is the maternity *

  • *

[*equality clause? *]

*26. *

*Useful Contacts. *

*15. *

*Discrimination. *

*Please note, if you are receiving this leaflet along with a letter engaging you as a client of this firm, this leaflet forms part of our advice to you about your case. You should read it carefully and raise any questions you have with your appointed adviser. If you are reading this leaflet and you are not a client of this firm, then the information that follows does not constitute legal advice. You should always seek formal advice on your case before deciding what to do next.*

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HOW COMMON IS PREGNANCY AND MATERNITY RELATED

WORKPLACE DISCRIMINATION IN SCOTLAND?

Recent joint research by the UK Equality and Human Rights Commission and the Department for Business and Innovation identified that 77% of mums surveyed said they had been subjected to a negative or possibly discriminatory experience during pregnancy, maternity leave or on returning to work.

20% felt that they had experienced harassment or negative comments relating to pregnancy or flexible working from their employer or colleagues. Around 10% said they felt forced to leave their job. As part of our response to the EHRC’s recommendations in March this year calling for better access to information and advice for women we are publishing these guides and providing copies to new mum’s across Scotland.

This guide is aimed at redressing that balance and providing assistance at this most important time of anyone’s life to ensure that, where such unlawful bad practice occurs, information is available as to workplace rights in Scotland. We publish a separate guide on the law in Scotland around gender pay gap. Should this be of assistance please contact us and we will arrange to issue copy to you. However, we are conscious that recent research in 2016

identifies a 29% pay gap between men and women in Scotland and separately, a study***

again in 2016 demonstrates pay gap is smaller among young men and women but grows consistently for 12 years after the a first child is born by which point women are receiving 33% less pay per hour than men. We also welcome feedback on good workplace practices in Scotland as we look to share and assist in the development of fair work across Scotland.

The guide is also intended to raise awareness of shared parental leave rights against a background that it is estimated that only 300 new parents in Scotland took up shared parental leave in Scotland in 2016 based on UK figures *owing to what is said to be a lack of awareness of the scheme which came into force in April 2015 and which allows both parents to share upto 12 months of leave in the baby’s first year.

This guide is aimed at redressing the balance and providing assistance at this most important time of anyone’s life and to ensure that, where such unlawful bad practice occurs, information is available as to workplace rights in Scotland. We support the Scottish Government’s announced Working Group in looking to tackle unacceptable discrimination including the development of guidelines for employers in Scotland to ensure that they meet their legal obligations to women from day one of their employment.

[from number of employees receiving a Shared Parental Pay (ShPP) payment between January-March 2016*]

[* research by the Chartered Management Institute *]

[* *** study carried out by the Institute for Fiscal Studies funded by the social research charity Joseph Rowntree Foundation *] 3

TIME LIMITS FOR LODGING A CLAIM

There are strict time limits which apply to claims relating to discrimination such as those arsing from pregnancy and maternity. In particular, any claim regarding discrimination, where the employment is in Scotland, must be lodged with the Central Office of Employment Tribunals office in Glasgow within 3 months minus one day of the act of discrimination that the person is complaining about. In exceptional circumstances the three month time limit may be extended if a Tribunal believes it is just and equitable to do so.

When discrimination has occurred over a long period of time, this may amount to a continuing act extending over a period. A claim must then be brought within three months less one day of the last act in the series of acts.

It is useful to be able to demonstrate that a written grievance has been issued to the employer setting out the complaint in order to prevent any possible reduction in any Tribunal award.

However, lodging an internal grievance does not alter the time limits.

ACAS Early Conciliation

Any prospective Employment Tribunal claim must go through the ACAS Early Conciliation process before it can be submitted to the Employment Tribunal.

This free service aims to resolve more employment disputes before they reach a Tribunal. You will get a certificate from ACAS if Early Conciliation is unsuccessful. You will need a copy of this certificate to submit a claim to the Employment Tribunal.

The time limit for making a claim to the Employment Tribunal may be extended by the amount of time your claim has spent in ACAS Early Conciliation. For example, if your claim spent 3

weeks in Early Conciliation, the deadline may be 3 weeks later. While you may get up to one month after the issue of the ACAS certificate to make a claim to the Employment Tribunal you should not delay in doing so as time limits are strictly applied.

You should get legal advice on your situation before pursuing any case.

Please contact our unique specialist employment support team if you wish further details at [email protected]

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At Thompsons Scotland we recognise that almost as important as the time limit is looking at how to fund your Employment Claim. We offer specialist Scottish Claimant Employment Law advice and Tribunal representation to Claimants and may be able to offer the following options: Fixed Fee

Thompsons Scotland can offer a range of options to pay for and to progress your employment claim, we can often provide initial legal advice on a fixed fee basis.

Hourly Rate

We can, like many other law firms, help you with your employment claim on the usual hourly rate basis.

Legal Expense Insurance

Thompsons Scotland can work with your Home Content or other similar Insurer who may offer legal expense insurance who may offer to fund at least some of your fees.

These policies will generally only provide some funding for employment claims where they are satisfied that it has reasonable prospects of success and you have exhausted your employer’s internal processes.

No Win No Fee Agreements

If you do not have access to legal expenses insurance, then once an Employment Lawyer has assessed your claim, we may be able to offer you a form of No Win No Fee agreement, meaning that you don’t pay any further sum to us if we can’t successfully resolve your claim and we will cap our fees based on a percentage of the compensation secured.

We can look in some instances to combine the agreements referred to above to suit your particular claim and your needs.

Employment claims are subject to tight deadlines. For example the majority of claims must be brought within 3 months of the matter you are complaining about so it is important that you act quickly. Thompsons Scotland will not be deemed to be acting for you, until there are signed terms of business and appropriate identity checks in place.

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PREGNANCY & MATERNITY RIGHTS

LEGISLATION

[*What laws protect pregnant women and women on maternity leave? *]

There are a number of legislative provisions giving protection to pregnant women and women on maternity leave. These include:

• Equality Act 2010 which outlaws discrimination against employees because of the

“protected characteristic” of pregnancy and maternity during the “protected period”.

• Employment Rights Act 1996 which sets out rights to health and safety, time off for ante-natal care, maternity leave and unfair dismissal.

• Maternity and Parental Leave etc Regulations 1999 which set out entitlement to both maternity and parental leave and the notification requirements.

• European law including the Pregnant Workers Directive and the recast Equal Treatment Directive which provide pregnant women or women on maternity leave with protected status and which continues to have force of law in the Scotland despite the outcome of the EU referendum vote this year.

Written Statement Of Employment

Employers must give employees a written statement of the main terms of employment within two months of the beginning of employment. It should include among other things details of pay, hours, holidays, notice periods, and collective agreements all of which may provide for better terms than those required by legislation together with an additional note of disciplinary and grievance procedures. It is useful to review these when considering workplace rights.

Notification of pregnancy

An employee who wants to apply for maternity leave must give notice to her employer of her pregnancy, her expected week of childbirth and the date on which she expects her Ordinary Maternity Leave (OML) to start. She must give this notice on or before the 15th week before childbirth (if possible), but can change her plans on giving 28 days’ notice.

A failure to comply with the notification requirements could mean that the employee loses her right to start her maternity leave on the date she chose. However, there are exceptions, for example, where the baby is born early, in which case the employee should notify the employer as soon as possible after the date of birth.

An employee wanting to return to work before the end of her additional maternity leave must give her employer eight weeks’ notice. A failure to do so means that the employer can postpone the return date. An employee does not have to give her employer notice if she wishes to return to work before the end of her Ordinary Maternity Leave (OML).

6

ANTE-NATAL RIGHTS

[*What rights do you have? *]

Women are entitled to paid time off during working hours to attend ante-natal appointments. Ante-natal care is not defined but is likely to cover medical examinations and relaxation classes.

The woman should notify the employer of the appointment and, if asked, should provide proof of pregnancy (such as the MAT B1) and a copy of the appointment card.

[*Can an employer refuse to give the time off? *]

An employer must not unreasonably refuse time off. There is nothing in the law which clarifies when a refusal would be unreasonable, but an employer who refuses just because a woman has had a lot of appointments close together will not be acting reasonably.

However, if there is evidence that appointments could have been arranged at times which were more convenient to the employer or outside working hours then a refusal may be reasonable.

If the woman thinks that her employer’s refusal is unreasonable, or claims that her employer did not pay her, she can complain to a Tribunal within three months of the date of the missed appointment. She can also claim unlawful sex or pregnancy discrimination and can be awarded compensation.

Different arrangements apply where the employer says you are a “worker” rather than an

“employee” (where for instance the women is a freelance worker or is employed through an agency), specific advice should be sought on rights to ensure you receive the basic rights you may be entitled to.

[*Who is entitled to these rights? *]

As with most maternity rights, the woman must be an employee in order to benefit, but agency workers who qualify for rights under the Agency Workers Regulations 2010 are also covered. The entitlement applies from day one of employment.

[*What about fertility treatment? *]

Women receiving fertility treatment are not legally entitled to paid time off for ante-natal care.

However, failure to allow time off may amount to sex discrimination.

Once a fertilised embryo has been implanted, the woman is entitled to be treated as pregnant.

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MATERNITY LEAVE

[*How long is maternity leave? *]

All pregnant employees are entitled to 52 weeks of maternity leave, irrespective of how long they have worked for their employer or how many hours they work per week.

This is made up of 26 weeks of Ordinary Maternity Leave (OML), after which the woman has the right to return to the same job; and 26 weeks of Additional Maternity Leave (AML), after which she has the right to return to the same job, or if that is not reasonably practicable, to another job which is suitable for her and appropriate for her in the circumstances.

The terms and conditions must be no less favourable than if she had not been absent, with seniority rights preserved as they were at the start of her AML period.

[*What notice do you have to give before going on Ordinary Maternity Leave (OML)? *]

To apply for maternity leave, a woman must tell her employer (although not necessarily in writing) at least 15 weeks before the week in which baby is due:

• That she is pregnant.

• The date when the baby is due (the employer can ask to see evidence such as a medical certificate, MAT B1 form).

• The date when she intends to start her maternity leave, but if it is not reasonably practical for the woman to give that much notice, perhaps because the baby is premature or because she has just started working for that employer, she has to give notice as soon as she can.

If the woman fails to comply with any or all of the notification requirements, or gave them late and cannot satisfy the ‘not reasonably practical’ test, she loses her right to OML on the intended start date.

Additional Maternity Leave

All female employees are entitled to a further 26 weeks of additional maternity leave.

This follows on from OML.

An employee is entitled to return to her old job after AML or, if that is not reasonably practicable, to another job which is suitable for her and appropriate for her in the circumstances.

The terms and conditions must be no less favourable than if she had not been absent, with seniority rights preserved as they were at the start of her AML period.

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[*What does the employer have to do? *]

Once the employer knows that the woman is pregnant and the work is of a kind that poses a risk to employees who are pregnant, they should carry out a risk assessment of the workplace, identifying any risks to the employee during her pregnancy and after the birth if she is breastfeeding.

Once the employee has told the employer when she intends to start OML, the employer must write to her within 28 days, telling her when she is expected to return, based on the assumption that she wants to take her full 52 week entitlement.

If the employer fails to tell the woman when her maternity leave ends, they cannot then complain if she does not return on the right date. The woman can, however, complain if she suffers a disadvantage because she comes back late. If she is dismissed as a result, it is likely to be automatically unfair.

[*What happens if you are ill? *]

If the woman is ill during her pregnancy and it has nothing to do with her pregnancy, she is entitled to claim sick leave in the usual way until the date when she starts OML.

If, however, she is off work with an illness which is wholly or partly to do with her pregnancy any time in the four weeks leading up to the due date, then OML will be automatically triggered, and her employer can insist she starts her maternity leave early.

[*What terms and conditions apply during maternity leave? *]

During maternity leave, the woman is entitled to all the same terms and conditions (apart from the right to be paid), had she not been away from work. Equally, she is bound by any obligations under her contract, unless they conflict with her right to take leave.

All service-related benefits accrue during OML and AML.

[*Can employers make contact during maternity leave? *]

Employers can make reasonable contact with the woman during the leave period to let her know about any changes that are happening. They might also discuss whether or not she will come into work (perhaps for training purposes) during her leave.

Women are allowed to go into work for up to ten days (known as “keeping in touch” days) during their leave without losing their right to maternity leave or statutory pay. They are not obliged to take up these days, nor is the employer obliged to offer them.

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[*What notice do you have to give on return to work? *]

Women are not required to give any notice to their employer that they intend to return to work after the end of their full maternity leave. If the woman does not wish to return, she must hand in her notice in the normal way before the end of her maternity leave period.

If the woman wants to return before the end of her AML she has to tell her employer eight weeks before the date of when she intends to come back. The employer can postpone her return until they’ve received that notice although not past the end of the 52 week period.

[*What happens if the employer refuses to allow you to return? *]

If an employer refuses to take someone back, this would constitute an automatically unfair dismissal unless the reason was because the woman had been made redundant and there was no suitable alternative vacancy or if it was not reasonably practical to take her back perhaps because of an internal reorganisation.

In these circumstances the usual rules on unfair dismissal would apply and the woman may also have claims for pregnancy related detriment and sex discrimination.

[*What rights do you have if you are made redundant? *]

If a woman is made redundant during her maternity leave, her employer must offer her suitable, alternative employment (if it exists) on no less favourable terms. She has priority in being offered alternative work over other staff who are not on maternity leave. The terms and conditions should not be substantially less favourable than her old job — for instance, they should not be of a lower status.

Employees at risk of redundancy who wish to return to work on different terms and conditions should tell their employer in advance of their return that they wish to do so. This is because a Tribunal will take into account whether the new job poses problems for the woman, such as increased travelling time and greater childcare costs and whether the employee has responded to offers when deciding if the alternative job was suitable.

Breastfeeding and Return to Work

While there is no statutory right to time off to express milk or breastfeed a baby in the workplace. Where an employer refuses to accommodate the breastfeeding mothers needs, this may give rise to a claim for sex discrimination.

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STATUTORY MATERNITY PAY

[*Who is entitled to Statutory Maternity Pay (SMP)? *]

SMP is the money paid by an employer to a pregnant woman for up to 39 weeks if she satisfies the qualifying conditions.

To qualify for SMP, the woman has to:

• Be in continuous employment for 26 weeks with the same employer, up to and including the 15th week before the expected week of childbirth (the “qualifying” week).

(www.gov.uk/employers-maternity-pay-leave/entitlement)

• Have average weekly earnings of at least £112 (before tax) per week (April 2016 – April 2017 during an eight week reference period ending with the qualifying week

• Have given 28 days’ notice to her employer as to when they are liable to start paying SMP

(or less than that if it is not reasonably practical to give 28 days’ notice).

• Have produced a medical certificate (MATB1) from a doctor or midwife, which gives the date when she is due to give birth.

• Have stopped work.

SMP will usually start when you take maternity leave and up to 11 weeks before the expected week of childbirth. You can work right up until the date the baby is born. However, SMP will start automatically if you are off work for a pregnancy related illness in the 4 weeks before the week (Sunday to Saturday) that the baby is due.

SMP is paid at two rates: for the first 6 weeks 90% of your average earnings(before tax) and for the following 33 weeks it is £139.58 or 90% — which ever is lower of your average weekly earnings (April 2016 – April 2017). Employers can usually claim 92% of employee’s Statutory Maternity Pay, Paternity Pay, Adoptive Pay (www.gov.uk/maternity-pay-leave/pay) [*(Further guidance is provided on page 25 under Shared Parental Leave and Pay). *]

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[*How much is SMP? *]

SMP is paid at a rate of 90% of normal earnings for the first six weeks of maternity leave, followed by a flat rate for the remaining 33 weeks. Current rates can be found at www.gov.uk/maternity-pay-leave/pay.

Normal earnings are calculated on the basis of an eight-week reference period prior to the 15th week before the week in which the baby is due. This will include a backdated pay rise that an employer may have awarded to staff even if it postdates the eight-week reference period.

[*When do you have to pay back SMP? *]

Never. The only money that an employer could recoup would be contractual maternity benefit that they pay over and above SMP where conditions apply.

[*Who can claim maternity allowance? *]

Maternity allowance is a benefit payable to women who do not qualify for SMP. To claim the allowance they need to:

• Have been employed (or self-employed) for at least 26 weeks in the 66 weeks before the baby is due.

• Have average weekly earnings over any 13 weeks in the 66 week period of more than £30

per week.

The allowance is paid for a maximum of 39 weeks at a weekly flat rate or 90% of average weekly earnings, whichever is less. It cannot start before the 11th week before the baby is due. It is claimed and paid through Jobcentre Plus.

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FLEXIBLE WORKING

[*What are the rules on annual leave? *]

Paid annual leave (both contractual and statutory under the Working Time Regulations) continue to accrue during OML and AML. The leave should therefore be taken either before or after maternity leave.

If the period of maternity leave coincides with a period of compulsory shut down, case law has established that the woman should be able to take statutory annual leave at some other time, either before or after the maternity leave.

Similarly if the woman is not able to take her statutory entitlement to annual leave within that leave year, she should try to take within the year in which it accrued.

This is because under the Working Time Regulations there is no right to carry over statutory leave from one leave year to the next.

However, case law has held that it may be necessary to allow leave to be carried forward.

As such, women should request that they be allowed to defer the annual leave that they have accrued but not been able to take because they have been on maternity leave, until the following leave year.

[*What is the maternity equality clause? *]

The Equality Act 2010 inserts a maternity equality clause into the woman’s contract which states that:

• Any pay increase the woman receives (or would have received had she not been on leave) must be taken into account when calculating her maternity-related pay.

• Any bonus to which she is entitled must be paid at the time she would have received it had she not been on maternity leave.

• Her pay on her return to work must take account of any pay increases she would have received had she not been on statutory maternity leave.

[*What does this mean in reality? *]

Although the woman is not entitled to her salary (called remuneration) while she is on leave, she is still entitled to receive benefits in kind such as insurance or the use of a company car.

The law on what is covered is complex and legal advice should be sought, for example recent case law suggests that employers can treat child care vouchers as remuneration and as such may not be obliged to continue to provide during the leave.

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At present it is planned that child care vouchers will be phased out from 2017 once a new tax free childcare scheme is phased in, operating directly between parents and the UK

Government meaning no employer involvement.

However and at present if the payment relates to work before she went on leave, she should receive it; if it relates to work she would have done had she not been on leave, she may not be entitled to it. If the payment relates to a longer period (such as a year), she should receive a pro rata amount to reflect the time when she was at work. If the payment relates to the period of compulsory maternity leave, she should be entitled to it.

If her employer refuses to pay her these benefits, she may be able to claim either pregnancy, sex discrimination or equal pay depending on the terms of her contract and whether the maternity clause applies.

She may also be able to claim for unlawful deduction of wages (strict time limits, usually three months from the date of detriment, apply), or a detriment under the 1999 Maternity and Parental Leave etc Regulations at a Tribunal.

ACCIDENTS TO EMPLOYMENT DISPUTES, COMPENSATION CLAIMS TO WILLS

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DISCRIMINATION

[*What does the Equality Act say? *]

The 2010 Equality Act says it is unlawful discrimination (which cannot be justified) for an employer to treat a woman unfavourably because of her pregnancy, because of a pregnancy-related illness, or because of maternity leave during the “protected period”.

However, the unfavourable treatment will only be unlawful if the employer knows, believes or suspects that the woman is pregnant, whether by formal notification or through the grapevine.

This means that if a woman is not paid discretionary pay and benefits because of her pregnancy or maternity she may be able to claim discrimination on that basis. If however, she has not received pay or benefits due under her contract, the maternity equality clause will apply and she may be able to claim equal pay.

[*What is the protected period? *]

The protected period starts when a woman becomes pregnant and continues until the end of her maternity leave, or until she returns to work if that is earlier.

[*Who is the comparator? *]

Unlike direct sex discrimination, a pregnant worker does not have to compare the way she has been treated with anyone else. If she is treated unfavourably by her employer because of her pregnancy or maternity leave, for example being denied rest breaks, that would be discriminatory.

[*What about direct discrimination by association or perception? *]

Discrimination by association or perception does not apply specifically to pregnancy. However, it may be possible to argue that a worker treated less favourably because of their association with a pregnant woman amounts to associative sex discrimination.

[*What remedies are available? *]

There are three remedies available to a Tribunal:

• Declaration

• Compensation

• Recommendations

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Declaration

A declaration states the rights of the claimant and sets out how the employer and/or any employee involved has acted unlawfully.

Compensation

Compensation can be awarded for injury to feelings and financial losses, if there are any.

There is no formal limit on the amount of compensation, which can include loss of earnings (past and future), loss of pension, interest and any other outlays associated with the discrimination. Although there is no formal cap, the government publishes yearly statistics on tribunal awards, including median awards and specific legal guidance should be sought on this area, as the amount of compensation for injury to feelings can vary enormously. The person’s age and vulnerability may be considered, and also the severity of the discrimination.

Claimants can also ask for compensation for personal injury if they have been seriously affected by the discrimination, particularly in harassment cases which can lead to illness and depression. A medical report would be required to support such a claim and again, it would be recommended that specific legal advice be sought on this issue.

Recommendations

The Tribunal can make recommendations that will benefit the individual employee.

If the employer fails to comply with a recommendation, then the Tribunal may order the compensation to be increased.

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FAMILY FRIENDLY RIGHTS

ADDITIONAL LEAVE

Adoption Leave

The provisions for adoption leave mirror the maternity leave rights.

They, therefore, allow an adopting parent to take 26 weeks of ordinary adoption leave followed by 26 weeks of additional adoption leave, providing the adopting parent has 26 weeks of employment service as on the day they are notified of the match.

Statutory adoption pay (SAP) is paid at a flat rate (which would usually change every April) or 90% of earnings, if lower, for 39 weeks for a child placed with an adopting parent. For up-to-date rates visit [*www.gov.uk/adoption-pay-leave/pay. *]

Paid Paternity leave

Paid paternity leave is available to the biological father of the child, husband or partner (whether or not the biological father) as long as they have 26 weeks of service at the 15th week before childbirth or adoption. The employer may ask the employee to complete a form SC3 which is available from the HMRC before the start of the paternity leave.

They have the right to take either one or two consecutive weeks of leave which must be taken within 56 days of the child’s birth, expected week of confinement or placement.

Notice of the intention to take paternity leave is similar for ordinary maternity or adoption leave. Statutory paternity pay is paid at a flat rate or 90% of earnings if lower.

See [*www.gov.uk/paternity-pay-leave/pay. *]

Unpaid Paternity leave

Employees who have completed 1 years service are also entitled to unpaid parental leave of up to 13 weeks for each parent and in relation to each child; and unpaid parental leave of up to 18

weeks for each parent and in relation to each disabled child. The leave must be taken for the purpose of caring for the child and parents cannot take more than four weeks leave per child per year.

Adoptive Parents

There are equivalent provisions that apply to adoptive parents, allowing leave to be taken within the five-year period following adoption and up to the age of 18 for a child who qualifies as disabled.

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Shared Parental Leave

This entitlement applies to parents where the child was due on or after 5 April 2015 (or, in the case of adoption, where the child is to be placed with the parents on or after this date) and allows the parents to share the mother’s entitlement to maternity leave and Statutory Maternity Pay. The maximum amount of leave which could be taken under Shared Parental Leave is 50 weeks because maternity leave is 52 weeks and two of the weeks are compulsory and cannot be converted into Shared Parental Leave.

It operates alongside the existing rights to Maternity Leave, Adoption Leave and Paternity Leave and replaces Additional Paternity Leave.

In order to qualify, both partners must meet a number of qualifying criteria:-

1. The mother must qualify for Statutory Maternity Pay or Maternity Allowance.

2. Both parents must have at least 26 weeks’ continuous employment at the end of the 15th week before the Expected Week of Childbirth (EWB) and continue to be employed by them until the week before the leave is due to begin.

3. The average earnings must be equal to at least the Lower Earnings Limit in the eight weeks up to the 15th week before the expected week of birth.

4. Both parents must expect to have primary responsibility for the care of the child.

The first 2 weeks (or 4 weeks where work is manual and in a factory environment) after the birth must be taken as leave by the mother and cannot be shared. This is for health and safety reasons.

In order for Shared Parental Leave to be taken, the mother cannot take all of her Statutory Maternity Leave and Statutory Maternity Pay and would provide a Curtailment Notice to the employer at least 8 weeks before the date she wants her maternity leave and pay to come to an end. The Curtailment Notice can be notified to her employer before giving birth.

Shared Parental Pay is paid at the same rate (or 90% of the normal earnings if that is lower) as Statutory Paternity Pay.

As indicated, there are strict notice requirements, both for the mother to bring her leave to an end and for the partner to give notice that Shared Parental Leave is being taken. If these requirements are not met then the entitlement will be lost.

More detail of the notice requirements and other rights in relation to Shared Parental Leave can be found at www.gov.uk/paternity-pay-leave/pay.

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Model Scheme

The regulations provide for model schemes dealing with the mechanics of parental leave, such as notice requirements and how leave will be taken, which would provide that leave should be taken in blocks of no less than one week, and no more than four weeks in one year.

Parents must give a minimum of 21 days’ notice prior to the proposed parental leave, with the exception of fathers who want to take leave straight after the baby is born, in which case they have to give 21 days’ notice prior to the expected week of childbirth.

Collective Agreement

The Regulations encourage employers and employees and recognised trade unions to negotiate Collective or Workforce Agreements. A request can be made for sight of any such agreement where they are in place although they should be identified from the Written Statement of main terms of employment which employers are required to give employees within two months of the beginning of their employment. Where no such agreement has been negotiated, then the model scheme set out in the Regulations will apply.

Employee Rights

Employee rights during parental leave are limited to the contractual right to trust and confidence, notice, redundancy and discipline and grievance.

If an employee takes less than four weeks off, they have the right to return to their old job.

If they take more than four weeks, their entitlement to have their job back is similar to the situation that applies to a woman returning from Additional Maternity Leave.

Women who qualify will be entitled to statutory maternity pay for 39 weeks of their maternity leave and fathers will be entitled to two weeks’ ordinary statutory paternity pay.

In addition, the government has said it will introduce statutory flexible parental pay for parents who meet the qualifying criteria which will replace additional statutory paternity pay.

Fathers and other eligible employees will also gain the right to take unpaid leave to attend two antenatal appointments. Adopters who meet the qualifying criteria will be able to take flexible parental leave, as will parents of children born through surrogacy. Statutory adoption leave will be available from day one and statutory adoption pay will be brought into line with statutory maternity pay.

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Time Off for Dependants

The Employment Rights Act gives employees the right to take unpaid time off for “urgent family reasons”. The right allows an employee to take a reasonable amount of time off work in order to take action which is necessary:

• To provide assistance when a dependant falls ill, gives birth or is injured.

• To make arrangements for the provision of care for a dependant who is ill or injured.

• In consequence of the death of a dependant.

• Because of the unexpected disruption or termination of care for the dependant.

• To deal with an incident involving a child of the employee occurring unexpectedly at an educational establishment (such as a school) which the child attends.

Definition of Dependant

A dependant is defined as a child, spouse, parent or person living in the same household (though not an employee, tenant or lodger). It also includes anyone who reasonably relies on the employee for assistance if they fall ill or for the provision of arrangements for care.

There is no definition as to what a ‘reasonable amount of time off ’ means.

However, it is important that the employee tells their employer as soon as they can of the reason for the absence and how long they expect to be absent.

Whilst time off, for example, to put alternative childcare arrangements in place where the usual nursery is not available the employer may agree to pay.

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Flexible working

Employees with 26 weeks of continuous service have the right to request to work flexibly.

The request must be made in writing and specify the change proposed, what effect the employee thinks the change might have on the employer and how this might be dealt with.

It also must explain the relationship between the employee and the child.

The employer must meet the employee within 28 days of the written request to discuss the application and provide a written decision within 14 days after the meeting.

Refusals can be made on a number of specific grounds such as the burden of additional costs.

However there are few sanctions on employers for refusing requests, and the grounds on which a Tribunal claim can be made are limited.

It may however, be possible to take a claim for sex discrimination if the request is refused.

ACCIDENTS TO EMPLOYMENT DISPUTES, COMPENSATION CLAIMS TO WILLS

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PART TIME WORKERS

Entitlement

Part-time workers have the legal right in certain circumstances to be treated equally to full-time workers. Both employees and workers are covered. The legislation says that a part-timer must not be treated any less favourably than a comparable full-timer, unless the difference can be justified by the employer. This covers treatment in general (including for example dismissal and redundancy) as well as terms and conditions of employment.

The need for a comparison

A part-timer has to make a comparison between how they have been treated, and how a comparable full-timer employed by the same employer has been treated. The part-timer can only compare themselves with a full-timer who is employed on the same type of contract and who is engaged in broadly similar work. When considering broadly similar work, case law has established that the focus should be on the similarities and not the differences.

Pro-rata

The pro-rata principle applies where appropriate. In relation to overtime, this means that overtime will not be paid to a part-timer until they have worked the same number of hours as a full-timer.

Right to receive written statement

Part-time employees can request a written statement of reasons why they have been treated less favourably than a comparable full-timer. The employer should respond within 21 days.

Remedies

Employees have the right to complain to an Employment Tribunal if they have been subject to a detriment or if they have been dismissed for taking time off or seeking to exercise their rights. They must submit their claim within three months less one day of the dismissal or detriment. Specific legal advice should always be sought at the earliest opportunity.

Proposals for reforms to assist pregnant women in the workplace in Scotland The Scottish Government has pledged to take action to ensure fairer workplaces for women and to tackle discrimination against new and expectant mothers in Scotland ahead of a report from the Equality and Human Rights Commission including: 22

• A new working group to create guidelines for employers to ensure best practice on recruitment, retention and development of pregnant workers;

• Including best practice in managing pregnancy and maternity appropriately within the Scottish Business Pledge;

• Strengthening employer advice to ensure that work environments are safe and healthy for pregnant women and new mothers, including providing employment rights information; and

• Improving public monitoring and reporting of pregnancy and maternity under the Scottish Public Sector Equality Duty.

Further proposals in Scotland include proposed transfer of Sure Start Maternity grant system to the Scottish Government and the provision of free vitamins to all mothers–to–be in Scotland.

ACCIDENTS TO EMPLOYMENT DISPUTES, COMPENSATION CLAIMS TO WILLS

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CHILD TAX CREDIT AND PROPOSED CHANGES

Although this guide is not intended as a comprehensive guide to benefits many parents can also claim Child Tax Credit for their children. Unlike the Sure Start Maternity Grant, it has not been proposed that Child Tax Credit be devolved to the control of the Scottish Government.

You can normally only get Child Tax Credit backdated for a maximum of one month before the date you apply so it’s important to consider applying early. You may be able to get this whether or not you are working, depending on your income and how many children you have.

The tax credit calculations are complicated and subject to change — if you want to know how much you might get, you can use the calculator on the GOV.UK website at www.gov.uk/tax-credits-calculator or look at the Tax Credits Entitlement Tables at www.gov.uk/government/collections/tax-credits-entitlement-tables Plans have been announced that, from April 2017, support provided through Child Tax Credit in the UK will be limited to 2 children, so that any subsequent children born after April 2017

will not be eligible for further support. In addition to the 2 child limit, the ‘family element’ of

£545 per year will be abolished.

In effect this will mean that families with one or more children born before April 2017 will continue to receive the family element but new claims after this date will not. Universal Credit, where it applies for children, is also planned to reduce in the same way as Child Tax Credit — from April 2017 it will be limited to 2 children, there will be no increase for subsequent children.

From the same date, new claims or new births will not be eligible for the ‘first child premium’

which means the child element for the first child will be the same rate as for the second child.

Parents, including lone parents, will be expected to have work focussed interviews when their youngest child turns 1, then start work preparation when their youngest child turns 2, all leading up to them being expected to look for work when their youngest child turns 3.

The present entitlement of 15 hours free childcare per week for working parents of 3 and 4

year olds are at present to be doubled in 2017 to allow 30 hours free childcare per week.

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Guidance available to employers

This guide is intended to provide advice and guidance to employees. It is worth noting that employers have a wide range of readily available guidance of how to comply with their obligations including free guides from the independent conciliation service ACAS who have published guides on equality:-

• Equality and Discrimination: Understand the basics

• Prevent Discrimination: Support equality

• Discrimination: What to do if it happens

• Shared Parental Leave: A Good Practice Guider for Employers and Employees ACCIDENTS TO EMPLOYMENT DISPUTES, COMPENSATION CLAIMS TO WILLS

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USEFUL CONTACTS

PACE

The Partnership Action for Continuing Employment (PACE) is the Scottish Government’s initiative operated through Skills Development Scotland dedicated to helping individuals with the advice and support offers free impartial advice and support Public Enquiry Line: 0800 917 8000

[*Online: www.redundancyscotland.co.uk *]

(redirects to myworldofwork.co.uk/my-career-options/redundancy-help-scotland maintained by Scottish Government Agency Skills Development Scotland for PACE) ACAS in Scotland

Operating throughout the UK ACAS provide a helpline providing clear, confidential, independent and impartial advice to assist with resolving issues in the work-place.

Public Enquiry Line: 08457 47 47 47

Minicom: 08456 06 16 00

Online: www.acas.org.uk

Employment Tribunal Service in Scotland

The Employment Tribunals are independent judicial bodies who determine disputes between employers and employees over specific employment rights. Their website provides information about the Tribunal’s procedures and gives guidance on how you make or respond to a claim.

Public Enquiry Line: 0845 795 9775

Mincom: 0845 757 3722

Online: www.justice.gov.uk/guidance/courts-and-tribunal/tribunals/employment [* Equality and Human Rights Commission (EHRC)*]

The EHRC is an independent statutory body established to help eliminate discrimination, reduce inequality and protect human rights.

[*Scotland: 0845 604 5510 *]

Textphone: 0845 604 5520

Website: www.equalityhumanrights.com

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PERSONAL INJURY SOLICITORS IN SCOTLAND SEEKING JUSTICE FOR YOU

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Thompsons Solicitors & Solicitor Advocates are regulated by The Law Society of Scotland and have offices throughout Scotland: Glasgow

Edinburgh

Aberdeen

285 Bath Street

16–20 Castle Street

42–44 King Street

Glasgow

Edinburgh

Aberdeen

G2 4HQ

EH2 3AT

AB24 5JT

Tel: 0141 221 8840

Tel: 0131 225 4297

Tel: 01224 793 949

Peebles

Galashiels

5 Cherry Court

84 Channel Street

Cavarly Park

Galashiels

EH45 9BU

TD1 1BD

Tel: 0131 473 6616

Tel: 0800 001 5163

Further Midgie Bites Scottish Legal Guides are available – please contact 0141 433 7768 for details, this and other Midgie Bites are available as Ebooks please let us know which format you would find most helpful.

[*OUR SISTER FIRM THOMPSONS SOLICITORS LLP ARE REGULATED VIA THE LAW SOCIETY OF ENGLAND & WALES *]

AND HAVE OFFICES IN: NEWCASTLE, MANCHESTER, LEEDS, SHEFFIELD, LIVERPOOL, STOKE-ON-TRENT, CARDIFF, *CHELMSFORD, NORWICH, NOTTINGHAM, CENTRAL LONDON, DAGENHAM, WIMBLEDON, OXFORD, BRISTOL *

*AND PLYMOUTH AND HAVE AN ASSOCIATED OFFICE IN BELFAST. *

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Pregnacy & Maternity and Family Friendly Workplace Rights in Scotland

77% of mums surveyed said that they have had a negative or possibly discriminatory experience during pregnancy, maternity leave or return to work

  • Author: Rory McPherson
  • Published: 2016-10-10 12:50:25
  • Words: 7861
Pregnacy & Maternity and Family Friendly Workplace Rights in Scotland Pregnacy & Maternity and Family Friendly Workplace Rights in Scotland