A client recently asked about the law on pregnant employees attending antenatal care appointments during working hours. A simple response is that all pregnant employees, regardless of hours worked or length of service, have an entitlement and statutory right to paid time off during working hours “for the purpose of receiving ante-natal care”. It is the definition of ‘ante-natal care’ and implementing such a right that can be problematic for employers.
‘Ante-natal care’ is not defined by legislation and employers are therefore left with having to keep up with ever-fluctuating case law and a piece of government guidance entitled: ‘Maternity entitlements and responsibilities: a guide – babies due on or after 1 April 2007’. The snappily-titled guidance states that antenatal care is not restricted to medical examinations and, as long as it is recommended by a registered medical practitioner, registered midwife or registered health visitor, antenatal care can encompass relaxation classes or even classes which teach ‘parent craft’. However, decisions from tribunals have not always been consistent. In the case of Bateman v Flexible Lamps Ltd the tribunal made a distinction between educational and medical classes, stating that purely educational classes did not fall within the statutory right.
Although it would be risky for an employer to challenge an employee on what constituted an appointment for antenatal care, it is certainly acceptable to ask for evidence of such an appointment. Following such a request, the employee must show a certificate confirming she is pregnant (such as a MAT B1 certificate), along with either an appointment card or other evidence that an appointment that has been made. In addition, although there are no set rules for how an employee should request time off for an antenatal appointment, an employer should be informed of the time and date of the appointment with as much notice as possible.
An employee can complain to a tribunal that an employer has refused time off for an antenatal appointment. By implication, an employer must be able to, and indeed is able to, refuse such an appointment when it is reasonable to do so. Oddly, however, there is no prescribed right in legislation. In addition to the dearth of clear legislative instruction, there is little case law to assist. A common sense approach should prevail and length of appointment, frequency of requests, timing, staffing levels, the urgency of the appointment and whether such an appointment could be taken outside of working hours, particularly for part-time employees, would all be reasonable factors to consider when accepting or refusing a request.
In terms of pay, an employee is entitled to be paid her normal hourly rate for the period of time off for her antenatal care appointment. It is accepted practice that time off includes travel to and from such an appointment.
Employers can be subject to an employment tribunal if they unreasonably refuse time off for an antenatal care appointment, or fail to pay an employee her normal rate of pay. A successful claim could result in compensation being awarded for the amount of pay an employee should have received for her time off. More costly, however, would be a finding of unlawful pregnancy and maternity discrimination under the Equality Act 2010 which is likely to occur if time off is unreasonably refused.
It is worth noting that fathers or partners are not entitled to take time off to accompany a pregnant wife or partner. However, employers should be aware that government guidance encourages employers to allow this. In addition, the Children and Families Bill does contain provisions which will enable certain employees to take unpaid time off to attend a number of antenatal care appointments with a pregnant employee. Keep an eye on employment.law-ondemand.com to find out when or if the Children and Families Bill gets enacted, and for a review of the implications for employers.
The right for pregnant employees to take paid time off for antenatal care appointments can cause problems for employers not armed with the right knowledge, especially as this area of law is ill-defined. It is best practice to put in place a robust policy which requires employees to give reasonable notice of an appointment, sets out what evidence they should provide, and clearly lists the factors which will be taken into account when deciding whether to accept or refuse a request. For clarity, it would also be prudent to confirm that time off includes travel to and from the appointment and to state that an employee is entitled to their normal hourly rate of pay. Given the potential issues with trying to define ‘ante-natal care’ and the inconsistent case law, it would be wise for an employer not to refuse an appointment based solely on the interpretation of whether such an appointment constituted antenatal care, unless it was patently obvious.
Keep up to date and sign up for our monthly newsletter.