Forthcoming Changes in Employment Law - Ante-natal Appointments

As most employers are aware both pregnant employees and agency workers have the right to attend ante-natal appointments.  However, the right to attend such appointments is being extended with effect from 1 October 2014 so that qualifying employees and workers can accompany a pregnant woman to appointments. 

The existing right is for pregnant employees and agency workers to have paid time off during working hours "for the purpose of receiving ante-natal care", regardless of the number of hours worked or their length of service.

Agency workers that have a similar right subject to qualifying conditions.

There is a degree of complexity in ante-natal care is not defined by legislation and in accordance with Government guidance is not restricted to medical examinations and can include relaxation and parent craft classes, provided that these are recommended by a registered Medical Practioner, registered Midwife or registered Health Visitor. 

The right to attend ante-natal appointments is unburdened by any form of strict procedural requirement.  The employer, agency or hirer is however, entitled to ask for evidence of ante-natal appointments and once such a request has been made, the employee or agency worker is not entitled to take time off until the evidence requested has been provided. 

In those circumstances, the employee or agency worker will need to produce either:

  1. a certificate confirming that she is pregnant such as Form MAT B1; or

  2. an appointment card or some other document showing an appointment has being made. 

An employer, temporary work agency or hirer may refuse a request by an employee or agency worker to take time off to attend an ante-natal appointment where it is reasonable to do so.  Typically, however the legislation gives no guidance as to when it would be reasonable to refuse such a request.  The employer, temporary work agency or hirer will need to consider each request on merit.  It may be reasonable to refuse a request made at short notice for a non-urgent appointment. 

The entitlement is to paid time off for ante-natal care.  Therefore an employee or agency worker is entitled to be paid at her normal rate of pay during the period of time taken off for ante-natal care.  Overtime would only be taken into account if it is compulsory and part of the normal working pattern.

Employees or agency workers are entitled to bring an Employment Tribunal claim if they are unreasonably refused time off for ante-natal care or denied their normal rate of pay during such time off.

The claim would need to be brought within a three month time limit beginning with the date of the relevant appointment or where this is not reasonably practicable within such a further period as the Tribunal considers reasonable. 

The remedies available to a successful complainant are:

  • A declaration - an award of compensation equivalent to the amount the woman was entitled to receive for the time off, where her complaint is that her employer refused her permission to take time off or refused to pay for the time off. 

With effect from 1 October 2014 this compensation will be increased to twice the amount she was entitled to receive when taking time off.  Of course, such claims may also be accompanied by unlawful pregnancy and maternity discrimination claims. 

With effect from 1 October 2014 an employee or agency worker who has a "qualifying relationship" with a pregnant woman or her expected child will be entitled to take time off during their working hours to accompany the woman to ante-natal appointments. 

This time off is however limited to no more than two occasions lasting no more than six and a half hours each.  There is no qualifying period of employment for this right so it will be available to relevant employees from the start of their employment.  It should be noted that agency workers will have such right subject to meeting the qualifying criteria which includes but is not limited to the fact that an agency worker must have completed their 12 week qualifying period. 

A qualifying relationship requires that an employee or agency worker is:

  1. A pregnant woman's husband or civil partner 

  2. Lives with the woman (whether in a heterosexual or same sex relationship) in an enduring family relationship and are not a relative of the woman.

  3. They are the expected child's father.

  4. They are one of a same sex couple who is to be treated as the child's other parent under the assisted reproduction provisions in sections 42 or 43 of the Human Fertilisation and Embryology Act ("HFEA") 2008.

  5. They are the potential applicant for a parental order under Section 54 of the HFEA 2008 in relation to a child who is expected to be born to a surrogate mother. 

The legislation provides further detailed guidance in relation to the definition of parental orders and relatives. 

The law does provide that an employee or agency worker wishing to accompany a woman to an ante-natal appointment should comply with certain formalities where requested.  In that case, the employee or agency worker will not be entitled to take time off unless they give the employer, temporary work agency or hirer a document (which maybe in electronic form, such as an e-mail) showing:

  1. That the employee or agency worker has a qualifying relationship with a pregnant woman or expected child.

  2. That the purpose of taking the time off is to attend an ante-natal appointment.

  3. That the appointment has been made on the advice of a registered doctor, registered midwife or registered nurse. 

  4. The date and time of the appointment.

Again, time off to accompany a woman to an ante-natal appointment may be refused where it is reasonable to do so.  Again, the legislation provides no guidance as to when it might be reasonable to refuse such a request.

Here however, the right to take time off and accompany a woman to an ante-natal appointment is unpaid.  The payment will be a matter of a contractual obligation or the employer, temporary work agency or hirer exercising their discretion in favour of the employee or agency worker.

As with the pregnant employee an employee or agency worker who has been unreasonably refused time off to accompany a pregnant woman may bring a Tribunal claim.  The claim must be brought within the three month time limit beginning with the day of the appointment in question or where this is not reasonably practicable within such further period as the Tribunal considers reasonable.

Where an employee or agency worker is successful, any compensation payable is twice the hourly rate for the period when the employee or agency worker would have been entitled to be absent, had the employer, temporary work agency or hirer granted the time off. 

In relation to agency workers the liability of the temporary work agency and the hirer is to be apportioned in such a way that is just and equitable having regard to the extent of their responsibility for the infringement of the worker's right.

As is commonly known, pregnant employees are protected from being subject to any detriment by any act or deliberate failure to act, by their employer because they take leave for family or domestic reasons.  As of 1 October 2014 employees and agency workers will be similarly protected from any detriment for taking time off to accompany a pregnant woman to an ante-natal appointment.

For employees, it will also be automatic unfair dismissal where the principle reason for their dismissal is that they took time off to accompany a woman to an ante-natal appointment. 

Posted on: 22/08/2014

This article is for general guidance only. It provides useful information in a concise form. Action should not be taken without obtaining specific legal advice.

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