The ECJ has ruled that an employer's redundancy selection exercise must not discriminate against workers who have taken parental leave. In this case, the employer used selection criteria from a recent appraisal process, which the employee had not participated in owing to her absence. She was therefore ranked on the basis of an historical appraisal, and this led to her being selected for redundancy.
This judgment seems to indicate that using information from historical performance appraisals may be permitted, as long as this does not disadvantage the employee who is on leave. The ECJ also emphasised the importance of applying identical selection criteria to all potentially redundant employees, even if the information used to apply those criteria emanated from different sources.
Eligibility for parental leave
To take parental leave, an employee must, at the time the leave is to be taken:
1. Have completed one year’s employment with the business.
2. Have, or expect to have, responsibility for looking after a child
Parental leave is unpaid and can be taken in addition to other rights, such as maternity leave.
Responsibility for looking after a child
Those responsible for a child will normally include:
1. Both birth parents.
2. Adoptive parents.
3. Others who have legal responsibility for a child (for example, a guardian).
Step-parents and foster parents are not normally covered.
Length of leave entitlement
Each parent is entitled to take 18 weeks’ parental leave for each child in their family. The right is personal and cannot be transferred from one parent to another.
Purpose of parental leave
Parental leave must be used for caring for a child. For example:
1. Accompanying a child during a stay in hospital.
2. Settling a child into new childcare arrangements.
3. Enabling a family to spend more time together
4. Looking at new schools.
Notice period for taking leave
a. An employee must give the business at least 21 days notice of their intention to take parental leave.
b. The employee must confirm the dates on which the period of leave will start and end.
c. The notice does not need to be in writing.
Postponing parental leave
Except where an employee wishes to take parental leave immediately upon the birth of a child, or upon the placement of a child for adoption, a business is entitled to postpone an employee's leave where it considers that the operation of its business would otherwise be unduly disrupted. For example, it may be justifiable to postpone leave:
1. During a peak period.
2. Where the individual is a key employee working on a time-critical project.
Taking parental leave
Although parental leave can be broken up into several periods, it must be taken in minimum one week blocks. Leave can be taken at any time:
1. Before the child's 5th birthday.
2. In the case of an adopted child, before the 5th anniversary of the date of placement.
3. In the case of a child entitled to a disability living allowance, before the child's 18th birthday.
Terms and conditions during leave
Certain terms and conditions of employment will continue to apply during parental leave. For example, employees will continue to benefit from statutory rights during the period of absence, such as the accrual of statutory holiday entitlement.
Returning to work after taking leave
An employee’s rights after returning to work will vary depending on the circumstances of the parental leave taken. For example, an employee returning to work after a period of leave of four weeks or less will have the right to return to the same job.
Penalties for breaching the rules on parental leave
There are several statutory offences in relation to parental leave that, if committed by a business, would entitle an employee to bring a complaint to an employment tribunal. For example:
Dismissing the employee. An employee is automatically treated as having been unfairly dismissed if the reason for their dismissal was connected with the fact that they took or tried to take parental leave.
Preventing or unreasonably postponing leave. An employee can make a complaint to an employment tribunal if the employer unreasonably postpones a period of parental leave requested by the employee or prevents (or attempts to prevent) the employee from taking parental leave altogether.
For employment advice for you or your business, please do not hesitate to contact Neil Largan on 01904 624185, John Broadbridge on 01653 600070 or Mark Robinson on 01757 708957.