The right to request parental leave and unreasonably refusing it

Following a recent Employment Tribunal case, where an employee was refused unpaid parental leave to spend time with her baby daughter and her husband, a serving soldier, who had recently returned from Afghanistan, our Employment Law specialist looks at the right to request unpaid parental leave.

The right to request unpaid parental leave has been available for some years. Employees who qualify can ask their employer for up to 18 weeks’ unpaid leave to care for their child or children and the employer cannot unreasonably refuse the time off, although they can postpone it in certain circumstances. The right is to have unpaid time off work during which their employment rights are protected. The right relates to each child, not to each employment – so if an employee has taken unpaid parental leave during employment with another employer, they can only ask for the balance of the 18 weeks in a new employment.

To be able to take unpaid parental leave, the person requesting the leave must have been an employee for a year and must be the parent (adoptive parent) or have parental responsibility for the child. The child must be under 18. It is open to employers to extend the right more widely, in which case it should be set out in HR policies.

The employee needs to give 21 days’ notice that they wish to take the leave, and must take the time in blocks of a week. Employees can take up to 4 weeks a year for each child – although again, employers can agree to extend this if they wish.

The leave must be taken to look after the child’s welfare. The Government’s guidance includes examples such as settling a child into a new childcare arrangements or school, to spend more time with the child or to spend more time with family such as visiting grandparents. Employers can ask that the employee postpones the time off but must have a significant reason for doing so, such as serious disruption to the business.

In reality, if an employee asks for unpaid time off under this right, for valid reasons, it is potentially difficult to refuse. The reported case is particularly extreme – it’s hard to see how the employer could have felt that spending time together as a family did not qualify, particularly after the child had been in hospital and the father had been serving abroad with the military. However, less extreme cases may be less clear cut. Postponing a request also requires careful thought by an employer, requiring a balancing of business need with the rights of the parent.

Whether you are an employer considering a specific request for unpaid parental leave, or looking at HR policies in general, or an employee who has been refused a request, we here at Rowberry Morris can help!

Unpaid Parental Leave – Top Tips!

For employers: it’s a good idea to set out the right to unpaid parental leave in your HR policies, even if you simply adhere to the statutory scheme. If you offer a better scheme – for example allow employees to take more than 4 weeks of their unpaid parental leave a year off, this should also be set out in your policies.

For employees: If you want to request unpaid parental leave check what your employer’s policy is and make sure you satisfy the qualifying criteria before you make your request. If your request is refused, you have 3 months to bring a complaint to an employment tribunal.