It has long been the position that pregnant employees and agency workers (subject to fulfilling certain criteria) have the right to paid time off during working hours “for the purpose of receiving antenatal care”. However, employers now need to have in mind that, from 1 October 2014, the right is to be extended so that, subject to qualifying criteria, an employee or agency worker will be entitled to accompany a pregnant woman to her antenatal appointment.
So, which employees or agency workers can exercise this right? The answer is those that are in a “qualifying relationship” with the pregnant woman, which means:
1. they are the pregnant woman’s husband or civil partner;
2. they live with the woman in an enduring family relationship (whether in a heterosexual or same-sex relationship) and are not related to the woman (note: the term “relative” is defined);
3. they are the father of the expected child;
4. they are one of a same-sex couple and will be treated as the other parent to the child under the assisted reproduction provisions within the Human Fertilisation and Embryology Act 2008; or
5. they are the potential applicant for a parental order under the Human Fertilisation and Embryology Act 2008 in relation to a child expected through surrogacy.
The right to accompany can be exercised by an employee from the start of employment, but, for agency workers, they need to have completed their 12-week qualifying period and, having done so, not moved to another role with the hirer nor had a break between assignments or during an assignment. Also, it is a right to accompany and not a right to attend, which means the pregnant woman can refuse to be accompanied and this would defeat the right.
If asked to do so by their employer, temporary work agency or hirer, an employee or agency worker should comply with certain formalities for applying for time off to accompany a woman to her antenatal appointment. If such a requirement is laid down then there is no entitlement to take the time off unless a document (electronic or otherwise) is provided by the employee or agency worker showing:
1. that there is a qualifying relationship with the pregnant woman or expected child;
2. that the purpose of the time off is to accompany a pregnant woman to an antenatal appointment;
3. that the appointment has been made on the advice of a registered doctor, midwife or nurse; and
4. the date and time of the appointment.
An employee or agency worker exercising this right is entitled to accompany a pregnant woman to a maximum of two antenatal appointments lasting no more than 6½ hours each, which it is anticipated will include travelling time, waiting time and the appointment itself. It will be at the discretion of employers to offer more time or, alternatively, a request could be made for annual leave to be used. There is no express right for the time off to be paid and, as such, payment will be subject to the employer’s discretion or contractual obligations.
Employers can refuse to allow time off where it is reasonable to do so but there is presently no guidance on what would be reasonable in those circumstances, perhaps a lack of requested evidence will be but that remains to be tested. Also, employers need to bear in mind that employees and agency workers will be protected from being subjected to a detriment for taking time off to accompany a pregnant woman to her antenatal appointment and it will be automatically unfair to dismiss an employee where the reason, or principal reason, for the dismissal is the employee exercising their right to accompany. Further, employees and agency workers who are unreasonably refused such time off during working hours will have the right to pursue a Tribunal claim and, if successful, the compensation payable is twice the hourly rate for the period when the employee or agency worker would have been entitled to be absent had they been allowed the time off.
In short, it is important to ensure that the new law is applied correctly when requests are made to accompany a pregnant woman to her antenatal appointment and any questions can be directed to the HRExpress team.
Chris Morse is a member of the employment team at leading South West legal firm Stephens Scown LLP. The team can be contacted by telephoning 01392 210700 or emailing employment@stephens-scown.co.uk