Planning for childcare while juggling a pharmacy career can be a stressful and confusing time for parents. In this article we look at the legal rights and entitlements for working parents and how to make use of flexible working arrangements.
Legal rights for mothers
All employees, irrespective of length of service, have the right to take up to 52 weeks maternity leave. To take this leave; employees must notify their employer of their pregnancy, their expected week of childbirth and the date they wish the maternity leave to start. Employers should be notified no later than 15 weeks before the expected week of childbirth.
Pregnant employees have the right to take paid time off work to attend antenatal appointments, which includes antenatal classes – an employer should not unreasonably refuse a request for this. Furthermore, upon being notified of a pregnancy, employers should carry out a risk assessment to consider any risks to the health and safety of a pregnant employee. Matters such as lone working and the risks of prolonged periods of standing should be sensibly considered, with jobs adjusted to minimise the risks.
During maternity leave, the mother is generally entitled to benefit from all the rights attached to her contract of employment (aside from pay). There is also an ability to stay in contact with work by taking ‘keeping in touch’ days — up to ten can be taken without affecting pay and benefits.
Mothers are also entitled to statutory maternity pay, provided they give at least 28 days’ notice of an intention to take maternity leave. Written notification is necessary in order to be eligible and is usually given via a certificate confirming pregnancy (a MAT B1 certificate). This needs to be certified by a medical professional, such as a doctor or midwife, and must give the mother’s estimated week of childbirth.
Statutory maternity pay is available for employees with more than 26 weeks of continuous service with one current employer at 15 weeks before the expected week of childbirth, and whose average earnings have been above the lower earnings limit for paying national insurance contributions. The pay is made up of 90% of your weekly wage for the first six weeks, followed by pay at a statutory rate (or average weekly pay, whichever is lower) for the next 33 weeks. The statutory rate is currently £148.68 per week. The remaining 13 weeks of leave, if taken, is unpaid by the employer.
Some employers will have a more generous maternity pay scheme than the statutory scheme. For example, employers may offer full pay for a period rather than the statutory rate. Such additional pay may have to be repaid if the mother does not return to work. It is therefore advisable to ask for a copy of your employers’ maternity policy.
For those employed on NHS terms, such as Agenda for Change, occupational maternity pay is available subject to the employee having 12 months of continuous service within the NHS by the 11th week before the expected week of childbirth. It is paid at eight weeks full pay and 18 weeks half pay, with the remaining period unpaid. After this period, an employee is entitled to statutory maternity pay.
Locum pharmacists may not be deemed ‘employees’ … and thus may not benefit from the full range of employment rights
The NHS also requires a written declaration as a condition of entitlement to occupational maternity pay. This must include that the employee intends to return to work for an NHS employer for a minimum period of three months. In the event the employee fails to return to work or otherwise fails to fulfil the condition, the enhanced pay becomes repayable.
Locum and self-employed mothers
The maternity rights set out above are specific to those in employment, but pharmacists supplied by an employment agency are also eligible for statutory maternity pay (on the same conditions as set out above). However, as regards the law, locum pharmacists may not be deemed ‘employees’ as the position depends on their contract and working arrangements, and thus may not benefit from the full range of employment rights.
The self-employed are not entitled to the same rights as employees and are not eligible for maternity leave or pay. They may, however, be entitled to claim maternity allowance or other social security benefits.
Mothers returning to work
Mothers are entitled to return to work at the end of their maternity leave to the same job and, generally, on the same terms and conditions of employment, unless a redundancy situation has arisen.
There is no right to return part-time or on a different working pattern unless the employer agrees. However, there is the right to apply for a flexible working pattern, which the employer must consider — see below.
Mothers affected by redundancy
During a redundancy situation, the rights of those on maternity leave take precedence over other employees affected. Employees that have their employment terminated by reason of redundancy during maternity leave must be offered other suitable employment with the employer. There are plans to extend this protection to cover the period of pregnancy, and a period of six months after returning to work, but at present no date has been set for this change in law.
Miscarriage and stillbirth
Where a child is stillborn after 24 weeks of pregnancy, all legal consequences that apply when a child is born alive still apply.
Within the first 24 weeks of pregnancy, a miscarriage or stillbirth is not considered to be “childbirth” and so, legally, a mother has no special rights to leave or pay. Any associated absence from work on medical grounds is treated in the same way as a pregnancy-related sickness. Individual employers may offer more support for mothers under their contract or the employer’s maternity policy.
In the event of a stillbirth after 24 weeks, a mother’s maternity leave will start the day after the birth (if it has not already started). A return to work can occur at any time before the end of the additional maternity leave (the latter 26 weeks) on giving eight weeks’ notice. She may give less notice if the employer agrees, but would not legally be able to return to work for at least two weeks after the birth.
Legal rights for fathers
Paternity leave and pay
New fathers are entitled to paternity leave after the birth of their child. This leave lasts for one week or two consecutive weeks, and can be taken at any time within 52 weeks of the child being born. Paternity leave is paid at the same statutory rate as statutory maternity pay, i.e. 90% of full pay.
Shared parental leave entitles mothers to share their maternity leave entitlement with their partners for up to 50 weeks
New fathers can also benefit from shared parental leave.
Shared parental leave
Shared parental leave entitles mothers to share their maternity leave entitlement with their partners for up to 50 weeks. For example, a mother could return to work after eight weeks with the father then taking some, or all, of the remaining 44 weeks maternity leave as shared parental leave. This is paid at the same rate as statutory maternity pay.
Although the initiative appears more progressive in allowing fathers to take a more active role in child-rearing, there has been a very low uptake with only a small percentage of new fathers (as low as 1%) using the leave. A contributory factor may be that shared parental leave is paid at the same statutory rate as shared maternity pay, meaning that if a father earns more it may not be financially viable for shared parental leave to be taken.
Generally, adoption pay and leave is given under the same terms as maternity pay and leave. Only one person in a couple matched with a child for adoption – such as via the Fostering for Adoption scheme, where a child in care is placed with registered foster carers who have also been approved as adopters – is entitled to a maximum of 52 weeks statutory adoption leave and statutory adoption pay. The other adopter may be entitled to paternity leave.
There remains no right to adoption leave nor statutory pay for individuals undertaking a private adoption, or step parents who wish to adopt their step children.
If a baby is born using a surrogate and formally adopted under a parental order, the main adopter is entitled to adoption leave and pay in the same way as set out above.
The partner may share some, or all, of that leave as shared parental leave; provided they fulfil the eligibility requirements.
The surrogate mother is entitled to the same maternity leave as pregnant mothers.
Flexible working requests
Changes have been made to the law to assist working parents in balancing work commitments with caring for their child — an example being shared parental leave, as set out above.
Difficulties with childcare can arise when working parents who have taken extended leave decide to return to work. Returning parents should meet with their employers to discuss working arrangements as early as possible. This is often left until shortly before the end of maternity leave but it can be more effective to meet early with the employer to informally discuss any desired changes to working patterns.
If matters cannot be agreed informally, a formal application for a flexible working pattern can be made as long as the employee has given over 26 weeks of continuous service.
Requests should be reasonably considered by employers. There is an ACAS Code of Practice which sets out guidelines for employees and employers in making and properly dealing with any flexible working requests. See Box 1 for what to include in a request.
Box 1: What to include in a flexible working request
- The date of application and the date of the planned commencement of new working arrangements;
- How the employee thinks the request may affect them and potential steps that could be taken to mitigate potential problems;
- That the right to make a flexible working request is granted under statute. If any previous requests have been made, the date must also be included.
If an employer declines a request, it should be for an objective business reason, i.e. the employer could not handle the burden of additional costs, recruitment shortages or skill gaps. A meeting to discuss statutory requests should take place within a reasonable timescale and an employee is entitled to hear the outcome of their flexible working request within three months of their application. See Box 2 for sources of more information and advice.
Box 2: Where to go to for more information and advice
About the author:
Lee Jefcott is a partner in the employment law team at Brabners LLP in Manchester.
The Royal Pharmaceutical Society launched its pharmacy inclusion and diversity programme in August 2019. Find out more about what the Society is doing for members here.