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Beat The Antenatal Rights Deadline24th Sep 2014

by Neil Andrews on 24th Sep 2014

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Employers have just days to consider and be ready to implement new antenatal rights coming into force on October 1.Neil Andrews Partner Coles Miller

From next month, qualifying fathers and partners have the right to accompany a pregnant woman to qualifying antenatal appointments.

The new rules allow for up to two visits – each of which can be up to 6.5 hours. The leave is unpaid.

Only employees or agency workers with a “qualifying relationship” will be eligible for the right. They include:

  • the father of the expected child
  • the pregnant woman’s husband or civil partner (they need not be the father)
  • a person living with the pregnant woman, either in a heterosexual or same-sex relationship, who is not related to them
  • other people who may qualify under rules pertaining to surrogacy.

Now at first glance this looks like yet another headache for employers.

Especially when you consider that the new law allows multiple sets of antenatal leave in scenarios such as these:

  • Both the father of the child and the woman’s husband or partner may qualify for leave (they may not be the same person)
  • Men who have fathered children by two different women may qualify for antenatal leave for each mother-to-be involved.

The new right comes along with the ability for an employee to challenge their employer in the Employment Tribunals if the right is refused. Employers who are unaware of the changes that take place on the October 1 deadline may fall foul.

There is also a clear administrative burden in arranging cover for employees exercising the right.

Add to that the fact that it is a day-one right – there is no qualifying period – and one can understand employers feeling worried by the prospect of yet another set of regulations.

But before employers become too despondent, there are several factors to bear in mind.

The right is for two antenatal appointments only. Given that the average mother-to-be normally attends 10 such appointments, two does not seem unduly onerous. Many employers already provide unpaid time off for this type of thing.

The right is to accompany not attend – so the pregnant woman may refuse to have the father or partner present.

Also, the employee or agency worker must comply with certain formalities before applying for time off (but only if requested to do so by their employer).

The employer can refuse, so long as the basis for refusing is reasonable.

Some more mercenary employers may already be sitting down with their calculators and working out that the cheapest option may simply be to refuse.

They may judge that few employees would go to the time and cost of bringing a claim to enforce their rights in the Employment Tribunals.

The award for unreasonable failure to allow attendance is twice the hourly rate for the duration of the appointment that was refused. Therefore the maximum award for refusing two appointments would be 26 hours of pay. For a worker aged 21 or over on the National Minimum Wage that would be only £169 (after October 1 2014.)

But it would be very shortsighted of employers to ignore the new rules – antenatal rights could form part of a discrimination claim, for which the damages can be unlimited.

So it pays to get expert advice.

To learn more about the new antenatal rights and other changes to employment law, contact Neil Andrews, 01202 673011.

This document is not intended to constitute and should not be used as a substitute for legal advice on any specific matter. No liability for the accuracy of the content of this document, or the consequences of relying on it, is assumed by the author. If you seek further information, please contact Managing Partner Neil Andrews at Coles Miller Solicitors LLP.