by Stephen Bishop, Barrister

Previously, it was only the expectant mother who was legally entitled to time off during working hours for the purpose of receiving antenatal care but the Children and Families Act 2014 has changed that. From 1 October 2014, those employees with a ‘qualifying relationship’ with a woman or her expected child have a right to time off.

Do not fooled by the word “relationship”: a would-be father from a one night stand qualifies. Nor does this apply only to fathers who are married or in a Civil Partnership – same sex partners qualify, as do intended parents of a child in a surrogacy arrangement.

It will be automatically unfair to dismiss an employee for exercising these rights and therefore the 2 year qualifying period does not apply. Employees are also protected from any detriment falling short of dismissal. If the time off is unreasonably refused, an award can be made of twice the hourly rate of pay for each hour that could have been taken off.

How Much Time off:

  • 2 antenatal appointments. Each can be up to 6.5 hours.

Qualifying Relationship: with either the unborn child or the mother.

  • The baby’s father;
  • The expectant mother’s spouse, her civil partner, or partner (of either sex) in an enduring relationship;
  • Intended parents of a child in a surrogacy arrangement if they expect to be entitled to and intend to apply for a parental order in respect of that child.

Thus in some, probably rare cases, an employer may have more than one person entitled to such leave in addition to the mother if she is also employed. Equally one person could, in exceptional circumstances involving 2 expectant mothers, be entitled to time off for each mother.

Qualifying period:

  • No qualifying period for employees.
  • Agency workers will be entitled to the time off once they have reached the 12 week qualifying period under the Agency Workers Regulations 2010.

Employers’ right to information

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.

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.

Tribunal Implications

  • Protection from any detriment arising from the exercise of their right to the time off;
  • Dismissing an employee will be automatically unfair if the principal reason is for exercising their right to time off and the normal qualifying period for unfair dismissal claims will not apply;
  • If time off is unreasonably refused, an award can be made of twice the hourly rate of pay for each hour that could have been taken off.

The Department of Business Innovation & Skills have produced an employer’s guide to the new right which can be found at: https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/351413/bis-14-1063-time-off-to-accompany-a-pregnant-woman-to-ante-natal-appointments-employer-guide.pdf