New right for fathers and partners to attend ante-natal appointments from October

Whilst businesses start grappling with the rules and practices surrounding shared parental leave, there is a new right, from 1 October 2014, for fathers and partners to take unpaid time off in order to attend up to two ante-natal appointments. Whilst not providing the shake-up in parental rights we will see from next April, it is a right which will be important for fathers and partners expecting a child and who want to provide support to their family from Day 1. However, the fact that the right is limited to two appointments and is likely to be unpaid by many employers will potentially limit its real impact for many individuals. On 8 September the Department for Business, Innovation & Skills published its guidance on “Time off to accompany a pregnant woman to ante-natal appointments” (see here).

What is the new right?

Pregnant employees currently have the right to paid time off in order to attend an ante-natal appointment. Where it is reasonable, an employer can refuse a request for time off (although there is no statutory guidance on what would be a reasonable refusal). Claims may be brought in the Employment Tribunal for any detriment suffered where an employee believes they have unreasonably refused time off and any dismissal for that reason will be automatically unfair.

From 1 October those who have a “qualifying relationship” with a pregnant woman will have the right to accompany them to ante-natal appointments. This will be limited to two appointments lasting no more than six and a half hours and will be unpaid. It is a Day 1 right – there will be no qualifying period for this right to exist. Automatic unfair dismissal and the right not to be subjected to a detriment will also extend to those who take time off to accompany a pregnant woman to an ante-natal appointment.

What is meant by “qualifying relationship”?

An employee will have a “qualifying relationship” with a pregnant woman if:

• they are the pregnant woman’s husband or civil partner.
• they live with the woman in an enduring family relationship and are not a relative of the woman.
• they are the child’s father.
• they are one of a same-sex couple who is to be treated as the child’s other parent under the assisted reproduction provisions in either section 42 or 43 of the Human Fertilisation and Embryology Act 2008 (HFEA 2008).
• they are the potential applicant for a parental order under section 54 of the HFEA 2008 in relation to a child who is expected to be born to a surrogate mother.

What ante-natal appointments would be covered?

There is no statutory definition of ante-natal care. However, previous guidance on the right of a woman to attend ante-natal appointments has not restricted it to medical examinations. It an include relaxation classes and parentcraft classes as long as they are recommended by a registered medical practitioner, registered midwife or registered health visitor. However, the approach of the courts has not always been consistent with this advice. In one tribunal case it was found that the classes were educational and not medical meaning it did not fall within the statutory right (Bateman v Flexible Lamps Ltd).

What evidence can you ask for?

If an employer wishes, it can ask an employee for written confirmation demonstrating that:

• they have a qualifying relationship with the pregnant woman or expected child;
• the time off is requested to enable them to attend an antenatal appointment;
• a medical professional (as described above) has recommended the appointment; and
• a date and time has been made for the appointment.  

Checklist – have you:

• made line managers aware of this new right?
• checked whether an employee is eligible i.e. are they in a qualifying relationship with a pregnant woman?
• confirmed the appointment they are requesting to attend is an antenatal appointment?
• asked to see any evidence of the appointment? If so, apply this request consistently across all employees.
• considered if there are any grounds on which you might deem it reasonable to refuse to grant time off? If so, you should give examples in the relevant paternity/shared parental leave polices but make it clear that each case will be reviewed on its individual merits?
• considered if you will pay the employee. If you do, this should be included in the relevant policies with a right to keep this payment under review and change it as appropriate. If you will not pay the employee for their absence at an ante-natal appointment, make this clear.