Forthcoming Changes in Employment Law – Ante-natal Appointments

As most employers are awareboth pregnant employees and agency workers have the right to attendante-natal appointments. However, the right to attend suchappointments is being extended with effect from 1 October 2014 sothat qualifying employees and workers can accompany a pregnantwoman to appointments.

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

Agency workers that have asimilar right subject to qualifying conditions.

There is a degree ofcomplexity in ante-natal care is not defined by legislation and inaccordance with Government guidance is not restricted to medicalexaminations and can include relaxation and parent craft classes,provided that these are recommended by a registered MedicalPractioner, registered Midwife or registered HealthVisitor.

The right to attend ante-natalappointments is unburdened by any form of strict proceduralrequirement. The employer, agency or hirer is however,entitled to ask for evidence of ante-natal appointments and oncesuch a request has been made, the employee or agency worker is notentitled to take time off until the evidence requested has beenprovided.

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

1. a certificate confirming that she is pregnant such as Form MATB1; or

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

An employer, temporary workagency or hirer may refuse a request by an employee or agencyworker to take time off to attend an ante-natal appointment whereit is reasonable to do so. Typically, however the legislationgives no guidance as to when it would be reasonable to refuse sucha request. The employer, temporary work agency or hirer willneed to consider each request on merit. It may be reasonableto refuse a request made at short notice for a non-urgentappointment.

The entitlement is to paidtime off for ante-natal care. Therefore an employee or agencyworker is entitled to be paid at her normal rate of pay during theperiod of time taken off for ante-natal care. Overtime wouldonly be taken into account if it is compulsory and part of thenormal working pattern.

Employees or agency workersare entitled to bring an Employment Tribunal claim if they areunreasonably refused time off for ante-natal care or denied theirnormal rate of pay during such time off.

The claim would need to bebrought within a three month time limit beginning with the date ofthe relevant appointment or where this is not reasonablypracticable within such a further period as the Tribunal considersreasonable.

The remedies available to asuccessful complainant are:

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

With effect from 1 October 2014 this compensation will beincreased to twice the amount she was entitled to receive whentaking time off. Of course, such claims may also beaccompanied by unlawful pregnancy and maternity discriminationclaims.

With effect from 1 October2014 an employee or agency worker who has a "qualifyingrelationship" with a pregnant woman or her expected child will beentitled to take time off during their working hours to accompanythe woman to ante-natal appointments.

This time off is howeverlimited to no more than two occasions lasting no more than six anda half hours each. There is no qualifying period ofemployment for this right so it will be available to relevantemployees from the start of their employment. It should benoted that agency workers will have such right subject to meetingthe qualifying criteria which includes but is not limited to thefact that an agency worker must have completed their 12 weekqualifying period.

A qualifying relationshiprequires 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 sexrelationship) in an enduring family relationship and are not arelative 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 thechild's other parent under the assisted reproduction provisions insections 42 or 43 of the Human Fertilisation and Embryology Act("HFEA") 2008.

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

The legislation providesfurther detailed guidance in relation to the definition of parentalorders and relatives.

The law does provide that anemployee or agency worker wishing to accompany a woman to anante-natal appointment should comply with certain formalities whererequested. In that case, the employee or agency worker willnot be entitled to take time off unless they give the employer,temporary work agency or hirer a document (which maybe inelectronic form, such as an e-mail) showing:

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

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

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

4. The date and time of the appointment.

Again, time off to accompany awoman to an ante-natal appointment may be refused where it isreasonable to do so. Again, the legislation provides noguidance as to when it might be reasonable to refuse such arequest.

Here however, the right totake time off and accompany a woman to an ante-natal appointment isunpaid. The payment will be a matter of a contractualobligation or the employer, temporary work agency or hirerexercising their discretion in favour of the employee or agencyworker.

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

Where an employee or agencyworker is successful, any compensation payable is twice the hourlyrate for the period when the employee or agency worker would havebeen entitled to be absent, had the employer, temporary work agencyor hirer granted the time off.

In relation to agency workersthe liability of the temporary work agency and the hirer is to beapportioned in such a way that is just and equitable having regardto the extent of their responsibility for the infringement of theworker's right.

As is commonly known, pregnantemployees are protected from being subject to any detriment by anyact or deliberate failure to act, by their employer because theytake leave for family or domestic reasons. As of 1 October2014 employees and agency workers will be similarly protected fromany detriment for taking time off to accompany a pregnant woman toan ante-natal appointment.

For employees, it will also beautomatic unfair dismissal where the principle reason for theirdismissal is that they took time off to accompany a woman to anante-natal appointment.

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.