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
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
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
In those circumstances, the
employee or agency worker will need to produce either:
a certificate confirming that she is pregnant such as Form MAT
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
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
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
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
A qualifying relationship
requires that an employee or agency worker is:
A pregnant woman's husband or civil partner
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.
They are the expected child's father.
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
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:
That the employee or agency worker has a qualifying relationship
with a pregnant woman or expected child.
That the purpose of taking the time off is to attend an
That the appointment has been made on the advice of a registered
doctor, registered midwife or registered nurse.
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
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
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
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
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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