Government reforms (1): Right to accompany – ante-natal appointments

In our Newsflash Fathers’ time off for antenatal appointments we let you know that from 1 October 2014 fathers will have the right to take unpaid time off work to attend two antenatal appointments with their partner. The new right is provided for in the Children and Families Act 2014 (“the Act”), and is part of the Government’s aim to ensure greater involvement of both the child’s parents in the earliest stages of pregnancy.

The Government has produced guidance on this right which is available here.

We have also put together some FAQs to help explain this new right.

What are the new rights in summary?

• employees or agency workers who have a ‘qualifying relationship’ with a pregnant woman are entitled to time off work to accompany her to a limited number of antenatal appointments;
• qualifying employees can take up to six and a half hours off for each appointment.
• employers can ask for a signed declaration from the employee, providing certain information to confirm his or her eligibility.

What is a ‘qualifying relationship’?

The new right is available to the pregnant woman’s:

• husband;
• civil partner or partner (including a same-sex partner);
• the father or parent of a pregnant woman’s child; and
• intended parents in a surrogacy situation who meet specified conditions.

The right is available to employees and qualifying agency workers who are the expectant father or partner (including same-sex couples) of a pregnant woman.

Can all employees use this right?

Yes if they are in a ‘qualifying relationship’. There is no need to have worked for the employer for a number of weeks. This is a right from day one.

Can all agency workers use this right?

No. Only qualifying agency workers can use the right (i.e. workers that have been doing the same kind of job for the same hirer for at least 12 weeks).

Is the time off paid?

No. The right is only to unpaid time off. However, of course, employers may decide to make it a contractual right for all employees to have this as a paid right or pay for the time off on a discretionary basis.

How many appointments can the employee attend?

The right is to accompany the pregnant woman to two appointments.

As this is a right to accompany, rather than to attend, if the pregnant woman does not want to be accompanied to any appointments then the employee will not have the right to take any time off.

How long does the employee have off for each appointment?

The employee or agency worker has the right to take up to six and a half hours off for each appointment. However, employers can decide to allow more time than this. The Government guidance suggests that the six and a half hours will cover travelling time, waiting time and attendance at the appointment.

What do employees need to tell us?

Employers cannot ask for evidence of the appointment but can ask the employee or agency worker for a signed declaration (which could be by email) confirming that he or she:

• is the expectant mother’s spouse, civil partner or partner, or the child’s father;
• that the purpose of the time off is to accompany the expectant mother to an antenatal appointment;
• that the appointment in question is made on the advice of a registered medical practitioner, registered midwife or registered nurse; and
• the date and time of the appointment.

Can we refuse a request for time off?

Yes, if it is reasonable to do so. However, there is no guidance so far as to when it would be reasonable to refuse a request for time off.

What can the employee do if we refuse the time off?

An employee or agency worker who is unreasonably refused time off can bring a Tribunal claim. If the claim is successful then the employee or agency worker will be awarded compensation of twice the hourly rate for the time the individual would have been entitled to be absent in order to attend the appointment.

Also, if the employee or agency worker is treated unfairly as a result of taking the time off (e.g. overlooked for promotion) then the employee has a right to bring a claim on the basis of suffering a detriment. If successful the employee or agency worker may be awarded compensation and an injury to feelings award.

For employees, if they are dismissed as a result of taking the time off then the employee could bring a claim for automatic unfair dismissal. The usual remedies for unfair dismissal would apply i.e. re-instatement, re-engagement and compensation.

What does this mean for employers?

It is important for employers to be aware of these changes as you are likely to want to amend staff handbooks and/or family friendly policies to include this right. Line managers will also need to have this right explained to them and their duties in this respect. Employers will need to decide whether to:

• provide for just the statutory right or to enhance the right (e.g. paid time off or the right to accompany for more than two appointments); and/or

• require employees to provide a signed declaration (see ‘what do employees need to tell us?’).