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Part two: What happens when time off for an antenatal appointment is refused?

From 1 October 2014, employees in a “qualifying relationship” will be entitled to accompany their pregnant partners to two antenatal appointments, for up to six and a half hours per appointment. There is no right to pay but there is an accompanying protection from detriment or dismissal. In part one of our blog we discussed who has the right to time off.   In part two we discuss an employee’s rights when their request is refused and top tips for employers to deal with the new right to time off. 

family friendly

 

Remedies for refusal of the right to time off

Compensation is twice the actual wages that the employee would have been entitled to had s/he been permitted to attend the appointment.

Agency workers can claim against the temporary work agency, the hirer, or both, whoever has unreasonably refused to allow him or her the time off, and compensation can be apportioned between the two in appropriate cases.

Detriment and Dismissal

Anyone who has exercised their right to time off, or sought to do so, is protected from being subjected to any detriment or dismissal by his employer for this reason, in the usual manner.

 

Analysis

So far so good, but does it help?

The previous guidance for employers was to try to accommodate requests from partners to attend antenatal appointments, recognising the importance of fathers bonding with the baby from the start. Many employers operate on this basis and allow expectant parents time off to attend scans and medical visits. It is unlikely that there will be an increase in the number of partners actually seeking to accompany pregnant women to their appointments – given that time off is unpaid, there is no incentive there for previously uninterested other halves to suddenly show an interest!

For those that do wish to attend, their employers are still able to refuse these requests where “reasonable”, although, unsurprisingly, this it is not defined in the legislation. We therefore have no gauge of how high the hurdle is to be and this alone makes the right potentially meaningless for many employees.

On minimum wage, the compensation would be limited to a maximum of £84.50. The issue fee alone stands at £160 and the outcome extremely unclear. It is inevitable, therefore, that we will see very few claims on this, at least until the law is more certain – the corollary to which is that it will take some time for any guidance to become available to potential claimants and their advisers.

There is a dearth of case law on the right of pregnant women to attend their own antenatal appointments, so we couldn’t rely upon the principle of “what is good for the goose is good for the gander” in any event, but chances are that “reasonable” will be interpreted differently between the woman and her partner. As usual, only time will tell, but we would advise exercising caution in refusing requests unless there are clear, unavoidable business reasons to do so.

Top Tips

• This is a day one right; make sure managers and supervisors are aware of it

• Will leave be paid or unpaid? Make it clear in your policy from the outset

• Time off is limited to 6.5 hours per appointment but BIS guidance suggests that extra time can be taken from an employee’s annual leave entitlement – specify clearly in your antenatal or parental leave policy what your organisation’s position is on this

Declarations – will you ask for them or not? If not, what safeguards would you put in place to ensure that leave is taken appropriately? If you use declarations, ensure that you keep a copy on file in case it subsequently becomes clear that the declaration was wholly or partly false; in which case disciplinary action may be valid

Contact us for questions about your antenatal policy

Other blogs of interest:

Part one: Who is entitled to the new right to time off for antenatal appointments ?

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Legal news, views, trends and tools for HR Professionals. Stay ahead. Go further