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Changes to antenatal appointments from 1 October 2014

21 August 2014

Currently, pregnant employees and agency workers have a legal right to time off work to attend antenatal appointments.

Their partners have no legal right to attend the appointment with them, although some employers have allowed such time off as part of their family-friendly work policies.

From 1 October 2014 the right will be extended so that fathers and partners can also take time off work to accompany a pregnant woman at those appointments.

How long can be taken?

The new right to time off is limited to partners attending two antenatal appointments. The total time off during working hours for each appointment should be no more than six and a half hours.

Who can take time off?

The right applies to employees and agency workers. However, for agency workers to benefit they must: have completed their 12 week qualifying period; continue to work in the same role; and have had no break between assignments or during an assignment when they have not been working.

What connection must the partner have with the pregnant woman and/or expected child?

The partner making an application for time off must have a "qualifying relationship" with the pregnant woman or expected child. This means they are:

  • the husband or civil partner of the pregnant woman
  • the person living with the pregnant woman (whether the same or different sex) but who is not a relative of the woman (ie not her parent, grandparent, sister, brother, aunt or uncle)
  • the father of the expected child
  • in a same-sex relationship with the pregnant woman and will be considered the other parent further to the assisted reproduction provisions set out in the Human Fertilisation and Embryology Act 2008, or
  • the potential applicant of a parental order in respect of an expected child of a surrogate mother.

How should a request be made?

There is no set format for making a time off application unless requested by the employer, temporary work agency or hirer.

If requested, the employee or agency worker must provide the following information, otherwise they will not be entitled to take time off:

  • that the individual is in a "qualifying relationship" with a pregnant woman or her expected child
  • that the purpose of the time off is to attend an antenatal appointment
  • that the appointment has been made on the advice of a registered medical practitioner, registered midwife or registered nurse; and the date and time of the appointment.

Can time off be refused?

Yes, where it is reasonable to do so. Unfortunately, there is no guidance on this, just as there is no guidance or case law as to when it would be reasonable to refuse a pregnant employee time off to attend an antenatal appointment.

Will time off be paid?

The new right will be for unpaid time off, whereas pregnant employees or agency workers currently have a right to paid time off.

What happens if we get it wrong?

If unreasonably refused time off, employees and agency workers can bring a claim in the Employment Tribunal.

Subject to the early ACAS conciliation rules, such a claim must be brought:

  • within 3 months starting with the date of the antenatal appointment for which time off was refused,
  • or such further period as the Tribunal considers reasonable if it considers that it was not reasonably practicable for the claim to be brought in time.

Compensation for a successful claim is double the hourly rate paid for the time which would have been taken off by the individual had they been allowed to attend the appointment.

The compensation may not therefore be significant, but clearly it is best to avoid such a dispute to avoid legal cost, management time and a negative impact on staff morale.

Employees and agency workers also have a right not to be subjected to any detriment because they have taken time off for family reasons.

Furthermore, employees will be able to bring an automatically unfair dismissal claim where the principal reason for their dismissal is the fact that they have taken time off to accompany a pregnant woman to antenatal appointment.

The latter two claims are likely to be more significant in terms of amount of compensation that could be awarded by the Tribunal for a successful claim.

In order to prepare your organisation for the introduction of this new right on 1 October 2014, consider the following:

  • Review and amend any existing family friendly policies: if these do not already permit a partner to have time off to attend an antenatal appointment, amend the policy to confirm that it is permitted. It is not possible to dictate that individuals have to make up the time they take off to accompany a pregnant woman. However, consider whether you stipulate that, where possible, appointments should be made at either the beginning or end of the working day to help encourage least disruption to your business.
  • Make sure managers are aware of this new right and know what to do when they receive a request: consider having a formal procedure in place (to include a simple form for staff to complete and sign) to ensure that requests are handled fairly and consistently across your business.
  • Consider whether you wish to offer rights over and above the statutory minimum: For example, will the time off be paid? Will individuals be entitled to time off for more than two antenatal appointments? There is no obligation to offer such enhancement, but for nominal cost this is likely to be valued by staff and help with employee engagement.

This article was written by Jessica Shemmings.

For more information contact Jessica on +44 (0)20 7427 6499 or jessica.shemmings@crsblaw.com