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Time off for Ante-natal Appointments - Changes Effective from 1 October 2014

Pregnant employees and qualifying agency workers have the right to paid time off work to attend antenatal appointments. In basic terms, an agency worker is required to have been doing the same kind of job for the same hirer for at least 12 weeks in order to qualify. (For simplicity, unless the contrary is stated, references below to employees should be taken to include qualifying agency workers, and references to employers should be taken to include temporary work agencies and hirers).

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Antenatal care is not defined by legislation but according to government guidance, it is not restricted to medical examinations and can include relaxation and parentcraft classes, provided that these are recommended by a registered medical practitioner, midwife or health visitor. However, the approach of employment tribunals has not always been consistent with this advice – in one case, for example, a tribunal held that the parentcraft classes in question were educational rather than medical and did not fall within the statutory right.

The basic level of compensation to be awarded to pregnant employees who are unreasonably refused time off on or after 1 October has been doubled: it was previously the amount they should have been paid for the time off, and it is now twice that.  More significantly, refusal to allow a pregnant employee time off, and any detriment to which they are subjected as a result of taking time off without permission, is likely to constitute both unlawful pregnancy and maternity discrimination under the Equality Act and a detriment under the Employment Rights Act. That potential protection for qualifying agency workers under the Employment Rights Act is also new from 1 October.

A further significant development is the new right for fathers to unpaid time off to accompany a pregnant woman to ante natal appointments, which came into effect from 1 October 2014.

The right applies to (i) the actual father; (ii) the pregnant woman’s partner (whether of the same or opposite sex); (ii) the pregnant woman’s husband or civil partner; and (iv) the intended parents in a surrogacy situation who expect to be entitled to, and intend to apply for, a parental order in respect of that child.

The entitlement is to unpaid leave for no more than two appointments of up to 6½ hours’ duration.

An employer is not entitled to ask for any evidence of the ante-natal appointments, such as an appointment card, as this is the property of the expectant mother attending the appointment. However, an employer can request an employee to provide a signed declaration stating:

  1. that the employee has a qualifying relationship with a pregnant woman or her expected child;
  2. that the employee’s purpose in taking time off is to accompany a pregnant woman to an ante-natal appointment;
  3. that the appointment in question is made on the advice of a registered medical practitioner, registered midwife or registered nurse; and 
  4. the date and time of the appointment.

If an employee seeks to exercise their right to accompany somebody to an ante-natal appointment, it will be unlawful for them to suffer any detriment as a result, and an employee is dismissed for exercising or seeking to exercise their right, the dismissal will be automatically unfair.

BIS has published a guide called “Time off to Accompany a Pregnant Woman to Antenatal Appointments: Employer guide”.

For further guidance on worker’s rights in relation to ante natal appointments or other employment law issues, please contact me on tel: 01952 211025 pr email jennifer.gibson@lblaw.co.uk.