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Employees' right to paid time off for antenatal care
Health and safety of pregnant workers
Employers' additional health and safety obligations towards pregnant workers and female workers of childbearing age.
You have a legal duty to protect the health and safety of pregnant mothers at work. This includes workers who could be pregnant as well as those who you know are pregnant.
Workplace risk assessment
Some substances, processes, and working conditions may affect human fertility as well as pose a risk to a pregnant worker and/or her unborn child. Therefore, you must think about the health of women of childbearing age, not just those who have told you that they are pregnant.
If you employ women of childbearing age, you should, as part of your normal risk assessment, consider if any work is likely to present a particular risk to them - whether or not they might be pregnant.
As part of your legal duty to take measures to protect your workers, all employers must undertake a workplace risk assessment for their pregnant employees. For further information see risk assessment for pregnant workers and new mothers - employer guidance from the Health and Safety Executive NI (HSENI).
Notification from a pregnant worker
You should also encourage workers, eg via your fertility policy, pregnancy at work, maternity policy or staff handbook, to notify you as soon as possible if they become pregnant. This is so you can identify if any further action is needed.
You are entitled to ask a pregnant worker to provide:
- notification of her pregnancy in writing
- a certificate from a registered medical practitioner or a registered midwife showing that she is pregnant
Note that you do not have to:
- begin to take any action in relation to a particular pregnant worker's health and safety until she gives you written notification
- maintain any action in relation to her where she has failed to give you the certificate within a reasonable period of time - although you must have requested in writing to see the certificate
However, even if a pregnant worker has not formally notified you of her pregnancy, it is good practice to do a risk assessment for her if you become aware that she is pregnant.
Once a worker notifies you that she is pregnant, you should review the risk assessment for her specific work and identify any changes that are necessary to protect her health and that of her unborn baby. Involve the worker in the process and review the assessment as her pregnancy progresses to see if any further adjustments are needed.
For more information on health and safety risk assessments, see health and safety risk assessment.
Pre-maternity leave meeting
It is good practice for an employer to hold a pre-maternity leave meeting with an employee to discuss and agree issues such as:
- handover and cover for her work during maternity leave
- keeping in touch days (including the employee's preferred contact details and method)
- receiving work related information
- employees right to shared parental leave
- annual leave
Potential hazards for pregnant workers
Things that might be hazardous to female employees - and pregnant workers in particular - include:
- mental and physical fatigue caused by long working hours
- night-time working
- work-related stress
- skin protection from sun exposure when working outdoors
- excessive noise
- extremes of cold and heat
- threat of violence in the workplace
- exposure to harmful substances, eg lead, radioactive materials, toxic chemicals like mercury and pesticides, infectious diseases, carbon monoxide, and antimitotic (cytotoxic) drugs
- exposure to radiation
- lifting/carrying heavy loads
- working at heights
- exposure to infectious diseases
- sitting or standing still for long periods of time
- unhealthy workstations or posture
- lone working
- exposure to vibration
If you identify a risk that could cause harm to your worker or their child, you must decide if you can control it. If you cannot control or remove the risk, you must do the following: eg adjust working conditions or working hours to avoid the risk or offer her suitable alternative work.
If this isn't possible, you must suspend the worker on paid leave for as long as necessary to protect their health and safety and that of their child.
Managing the health and safety of pregnant workers and new mothers - HSENI employer guidance.
Rest facilities for pregnant and breastfeeding mothers
You're required by law to provide somewhere for pregnant and breastfeeding mothers to rest.
Pregnant workers and breastfeeding mothers are entitled to more frequent rest breaks. You should talk to them so you can agree on the timing and frequency.
You are legally required to provide a suitable area where employees can rest, including somewhere to lie down if necessary. You must provide a private, hygienic, and safe room for nursing mothers to express milk if they choose to and somewhere to store breast milk, eg a fridge. Toilet facilities are not a suitable or hygienic place for this purpose.
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Medical suspension on maternity grounds
When an employee who is pregnant, or has recently given birth, or who is breast-feeding may have to be suspended from work on maternity grounds.
Where an expectant or new mother would be exposed to risk if she continued to perform her contractual duties, the employer is obliged to alter her working conditions or working hours if it is reasonable to do so and if it would avoid the risk. If it is not reasonable to make alterations, the employer must offer the employee suitable alternative work, or if that isn't possible, suspend the employee from work for as long as necessary to avoid the risk.
Right to the offer of alternative work
Where an employer has available suitable alternative work for an employee, the employee has a right to be offered the alternative work before being suspended from work on maternity grounds. For alternative work to be suitable for an employee for this purpose:
- the work must be of a kind that is both suitable in relation to her and appropriate for her to do in the circumstances, and
- the terms and conditions applicable to her for performing the work, if they differ from the corresponding terms and conditions applicable to her for performing the work she normally performs under her contract of employment, must not be substantially less favourable to her than those corresponding terms and conditions
In summary, an employee who is pregnant, has recently given birth, or who is breastfeeding may have to be suspended from work on maternity grounds if continued attendance might damage her, or the baby's health.
In general, the duty to suspend from work does not arise unless and until the employee has given the employer written notice that she is pregnant, has given birth within the previous six months, or is breastfeeding.
An employee who is suspended is entitled to full pay, which includes any bonuses or commissions they would have been paid. Their suspension should last until the risk to them, or their baby has been removed.
If the employee unreasonably refuses suitable alternative work the employer doesn't have to pay them.
An employee is entitled to make a complaint to an industrial tribunal if there is suitable alternative work available which her employer has failed to offer her before suspending her from work on maternity grounds. They can also complain to an industrial tribunal if they don't get the right amount of pay.
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Employees' right to paid time off for antenatal care
A pregnant employee is entitled to paid time off to attend antenatal care appointments during working hours.
All pregnant employees have the right to reasonable paid time off to attend antenatal care appointments. Employers should bear in mind that the right to paid time off is a right to be permitted time off during working hours and it will not be reasonable for the employer to avoid this by rearranging the individual's working schedule or requiring her to make up lost time.
Antenatal care covers not only medical examinations related to the pregnancy but also, for example, relaxation classes and parent-craft classes. There is no service requirement for this right.
However, the right to time off only applies if the appointment is recommended by a registered midwife, health visitor, registered nurse, or registered medical practitioner (eg a doctor).
Therefore, you are entitled to ask for evidence of antenatal appointments - except in the case of the very first appointment.
You can request that the employee show you:
- written documentation from a registered medical practitioner, a midwife, or a health visitor confirming that she is pregnant
- an appointment card or some other document showing that an appointment has been made
Reasonable time off for medical appointments
The law does not set out what 'reasonable' means regarding time off. Employees must request the time off and have a right not to be unreasonably refused time off. Tribunals are likely to find it unreasonable if an employer refuses to allow time off for appointments that are based on medical advice. Part-time employees should not be pressured to take appointments on their days off.
The amount of time off will depend on the time that the appointment is made, and it will not be unreasonable for an employer to expect an employee to attend for the part of the day that they can outside the appointment time. Time off also includes travelling time and waiting time for appointments. Abuse of the time off provisions may normally be handled under the absence management procedures but should be handled with caution.
Payment during time off
You must pay the employee her normal hourly rate during the period of time off for antenatal care.
Where the employee is paid a fixed annual salary, she should simply be paid as normal. In other cases calculate the rate by dividing the amount of a week's pay by the number of the employee's normal working hours in a week. The normal working hours will usually be set out in her contract of employment.
If her weekly working hours vary, you should average them over the previous 12 complete working weeks. If the employee has yet to complete 12 weeks' service, estimate the average considering:
- what could be reasonably expected from her contract of employment
- the work pattern of any fellow employees in comparable jobs
Overtime is counted only if it is required and contractually guaranteed.
Labour Relations Agency (LRA) guidance on time off work rights and responsibilities.
Complaints relating to time off for antenatal care
A pregnant employee could bring an unlawful discrimination and/or unfair dismissal claim to a tribunal if you:
- dismiss her or treat her unfairly because she tried to exercise her right to time off for antenatal care
- unreasonably refuse her time off for antenatal care
- deny her normal rate of pay during such time off
A pregnant employee can bring a claim regardless of whether or not:
- she actually has exercised the right to paid time off for antenatal care
- that right has actually been infringed
All she has to have done is act in good faith in seeking to assert the right.
See pregnant workers, dismissal and discrimination.
Time off to accompany to antenatal appointments
Following changes to the Work and Families Act (Northern Ireland) 2015, both employees and Agency workers, who have a qualifying relationship with the pregnant woman or her expected child, have the right to unpaid time off to attend up to two antenatal appointments. an agency worker will have rights to antenatal medical appointments and antenatal classes, after completing a 12-week qualifying period on the same assignment if they cannot reasonably arrange them outside working hours. The employee or agency worker must request the time off and cannot simply rely on these provisions as an after-the-fact justification for the absence from work.
A person in a qualifying relationship would include:
- the husband or civil partner of the pregnant woman
- a person who lives with the pregnant woman in an enduring family relationship (including same-sex couples) but is not a relative of that woman
- the father of the expected child
- a woman who is deemed to be the parent of the expected child under the Human Fertilisation and Embryology Act 2008
- either of the intended parents who are expecting a child from a surrogate mother and who are eligible for and intend to apply for a Parental Order (or have obtained such an Order)
The time off for each appointment is capped at 6.5 hours.
Spouse or civil partner
Although the regulations state that a person is in a qualifying relationship with a pregnant woman if he or she is the husband or civil partner of that woman, it is presumably the case that this category would also extend to the wife of the pregnant woman. Paragraph 7.1 of Part 2 of the Marriage (Same-sex Couples) and Civil Partnership (Opposite-sex Couples) (Northern Ireland) Regulations 2019, provides that any reference in legislation to a person who is married is to be read as including a reference to a person who is married to a person of the same sex.
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Pregnant workers, dismissal and discrimination
How employers can ensure they stay on the right side of sex discrimination law and appropriately support pregnant workers.
You must not treat a worker unfairly because she is pregnant. This may result in a claim of sex discrimination. Such unfair treatment includes dismissal.
Pregnancy and dismissal
It is an automatically unfair dismissal if you dismiss - or select for redundancy - an employee solely or mainly:
- for a reason relating to her pregnancy
- because she tried to assert her right to paid time off for antenatal care - see employees' right to paid time off for antenatal care
Only employees can claim unfair dismissal, but all workers can claim unlawful sex discrimination if they are dismissed or treated unreasonably for a reason relating to their pregnancy.
Sex discrimination
It amounts to unlawful sex discrimination if you:
- treat a pregnant worker unfairly for a reason relating to her pregnancy
- dismiss a pregnant worker solely or mainly for a reason relating to her pregnancy
- dismiss - or select for redundancy - a pregnant employee solely or mainly for a reason relating to her pregnancy
- dismiss - or select for redundancy - a pregnant employee solely or mainly because she tried to assert her right to paid time off for antenatal care - see employees' right to paid time off for antenatal care
- refuse to interview or employ a job applicant solely or mainly on the grounds that she is pregnant (or you believe that she may be, or may become, pregnant)
You can never justify this type of discrimination.
As pregnancy-related dismissals are discriminatory, it's likely that a pregnant employee would not only claim unfair dismissal but also unlawful sex discrimination. There is a limit on the amount of compensation a tribunal can award for unfair dismissal but not for unlawful discrimination.
A pregnant worker would only be able to claim unlawful sex discrimination, but there is still no limit on any tribunal compensation they might receive.
Developed withActionsAlso on this siteContent category
Source URL
/content/pregnant-workers-dismissal-and-discrimination
Links
Breastfeeding and the workplace
How employers can support employees to continue breastfeeding on their return to work after maternity leave.
There are business benefits for employers who take proactive steps to discuss and promote breastfeeding with employees returning from maternity leave to help facilitate their transition back to work.
Business benefits
- Increased motivation of employees and a better working culture, leading to greater flexibility and better communication.
- Health and wellbeing benefits to your employees.
- Reduction in absenteeism and staff turnover.
- Increased quality, greater levels of innovation and creativity, and improved productivity.
- Overall improved customer service.
- Raised public image of the company and competitive advantage, making it more attractive as an employer of choice.
- Contributes to an inclusive working culture.
Breastfeeding and rest periods
Employers are required by law to provide somewhere for breastfeeding employees to rest. Where necessary, this should include somewhere for them to lie down.
Although there is no legal right for an employee to take time off from their job in order to breastfeed, express milk for storage and later use, or take rest periods you should consider adapting working hours to enable an employee to continue to breastfeed or express milk. A refusal to adapt working hours could be indirect sex discrimination unless the employer can show the refusal is justified by the needs of the business.
Breastfeeding facilities
Employers are legally required to provide somewhere for breastfeeding employees to rest. Where necessary, this should include somewhere for them to lie down. Employers should consider providing a private, healthy and safe environment for employees to express and store milk, for example, it is not suitable for new mothers to use toilets for expressing milk.
Breastfeeding workplace policy
It is good practice to have a written workplace policy on breastfeeding clearly outlining the employer and employee's responsibilities. This will provide clarity around how requests can be made and will be considered by the employer. This will assist you in making objective, correct, and fair decisions. Implementing such a workplace policy demonstrates your principles and commitment as an employer to supporting employees who are breastfeeding to help create a positive and inclusive workplace where discrimination in any form is unacceptable and will not be tolerated.
Workplace health and safety for breastfeeding employees
There may be a number of risk factors in the workplace that may be harmful to a breastfeeding employee or her child’s health. You should take steps to identify these risks and consider how you can remove them for the safety of your employees.
For further information, see health and safety of pregnant workers.
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Source URL
/content/breastfeeding-and-workplace
Links
Fertility treatment and the workplace
How employers can support employees undergoing fertility treatment.
A woman undergoing fertility treatment, such as in vitro fertilisation (IVF), is treated as being pregnant after fertilised eggs have been implanted. If the implementation fails, the protected period, during which a woman must not be treated unfavourably on the grounds of her pregnancy, ends two weeks later.
It is unlawful sex discrimination for employers to treat a woman less favourably because she is undergoing fertility treatment or intends to become pregnant. A woman will be entitled to paid time off for antenatal care only after the fertilised embryo has been implanted. See having a child through IVF.
Supporting employees going through fertility treatment
For employees undertaking fertility treatment, it can be a long and difficult road both emotionally and physically. There will be obvious practicalities of medical appointments, getting used to new medications, and perhaps undergoing medical procedures. Employer understanding, support, and flexibility can often make a significant difference to someone at a difficult and potentially challenging time of their life. It's not just women who may require support, their partner may also require support and understanding in their difficult journey through fertility treatment.
Due to the personal nature of fertility treatment, employers should recognise and respect that employees have a right to privacy and may choose not to ask for support or wish for the matter to remain confidential. However, developing a compassionate culture with explicit support for employees going through fertility treatment can help overcome the taboo and encourage individuals to access the support they need.
Having a clear policy in place which tells people about the support the employer can offer, might go some way to breaking down the barriers, provided they feel their employer can be trusted to treat them fairly and they won't be penalised in some way. Raising awareness of fertility treatment amongst your workforce and equipping line managers on what to say and how to offer support through appropriate education and training can also help employees open up and feel comfortable asking for help.
Developed withActionsAlso on this siteContent category
Source URL
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Health and safety of pregnant workers
Health and safety of pregnant workers
Employers' additional health and safety obligations towards pregnant workers and female workers of childbearing age.
You have a legal duty to protect the health and safety of pregnant mothers at work. This includes workers who could be pregnant as well as those who you know are pregnant.
Workplace risk assessment
Some substances, processes, and working conditions may affect human fertility as well as pose a risk to a pregnant worker and/or her unborn child. Therefore, you must think about the health of women of childbearing age, not just those who have told you that they are pregnant.
If you employ women of childbearing age, you should, as part of your normal risk assessment, consider if any work is likely to present a particular risk to them - whether or not they might be pregnant.
As part of your legal duty to take measures to protect your workers, all employers must undertake a workplace risk assessment for their pregnant employees. For further information see risk assessment for pregnant workers and new mothers - employer guidance from the Health and Safety Executive NI (HSENI).
Notification from a pregnant worker
You should also encourage workers, eg via your fertility policy, pregnancy at work, maternity policy or staff handbook, to notify you as soon as possible if they become pregnant. This is so you can identify if any further action is needed.
You are entitled to ask a pregnant worker to provide:
- notification of her pregnancy in writing
- a certificate from a registered medical practitioner or a registered midwife showing that she is pregnant
Note that you do not have to:
- begin to take any action in relation to a particular pregnant worker's health and safety until she gives you written notification
- maintain any action in relation to her where she has failed to give you the certificate within a reasonable period of time - although you must have requested in writing to see the certificate
However, even if a pregnant worker has not formally notified you of her pregnancy, it is good practice to do a risk assessment for her if you become aware that she is pregnant.
Once a worker notifies you that she is pregnant, you should review the risk assessment for her specific work and identify any changes that are necessary to protect her health and that of her unborn baby. Involve the worker in the process and review the assessment as her pregnancy progresses to see if any further adjustments are needed.
For more information on health and safety risk assessments, see health and safety risk assessment.
Pre-maternity leave meeting
It is good practice for an employer to hold a pre-maternity leave meeting with an employee to discuss and agree issues such as:
- handover and cover for her work during maternity leave
- keeping in touch days (including the employee's preferred contact details and method)
- receiving work related information
- employees right to shared parental leave
- annual leave
Potential hazards for pregnant workers
Things that might be hazardous to female employees - and pregnant workers in particular - include:
- mental and physical fatigue caused by long working hours
- night-time working
- work-related stress
- skin protection from sun exposure when working outdoors
- excessive noise
- extremes of cold and heat
- threat of violence in the workplace
- exposure to harmful substances, eg lead, radioactive materials, toxic chemicals like mercury and pesticides, infectious diseases, carbon monoxide, and antimitotic (cytotoxic) drugs
- exposure to radiation
- lifting/carrying heavy loads
- working at heights
- exposure to infectious diseases
- sitting or standing still for long periods of time
- unhealthy workstations or posture
- lone working
- exposure to vibration
If you identify a risk that could cause harm to your worker or their child, you must decide if you can control it. If you cannot control or remove the risk, you must do the following: eg adjust working conditions or working hours to avoid the risk or offer her suitable alternative work.
If this isn't possible, you must suspend the worker on paid leave for as long as necessary to protect their health and safety and that of their child.
Managing the health and safety of pregnant workers and new mothers - HSENI employer guidance.
Rest facilities for pregnant and breastfeeding mothers
You're required by law to provide somewhere for pregnant and breastfeeding mothers to rest.
Pregnant workers and breastfeeding mothers are entitled to more frequent rest breaks. You should talk to them so you can agree on the timing and frequency.
You are legally required to provide a suitable area where employees can rest, including somewhere to lie down if necessary. You must provide a private, hygienic, and safe room for nursing mothers to express milk if they choose to and somewhere to store breast milk, eg a fridge. Toilet facilities are not a suitable or hygienic place for this purpose.
Developed withActionsAlso on this siteContent category
Source URL
/content/health-and-safety-pregnant-workers
Links
Medical suspension on maternity grounds
When an employee who is pregnant, or has recently given birth, or who is breast-feeding may have to be suspended from work on maternity grounds.
Where an expectant or new mother would be exposed to risk if she continued to perform her contractual duties, the employer is obliged to alter her working conditions or working hours if it is reasonable to do so and if it would avoid the risk. If it is not reasonable to make alterations, the employer must offer the employee suitable alternative work, or if that isn't possible, suspend the employee from work for as long as necessary to avoid the risk.
Right to the offer of alternative work
Where an employer has available suitable alternative work for an employee, the employee has a right to be offered the alternative work before being suspended from work on maternity grounds. For alternative work to be suitable for an employee for this purpose:
- the work must be of a kind that is both suitable in relation to her and appropriate for her to do in the circumstances, and
- the terms and conditions applicable to her for performing the work, if they differ from the corresponding terms and conditions applicable to her for performing the work she normally performs under her contract of employment, must not be substantially less favourable to her than those corresponding terms and conditions
In summary, an employee who is pregnant, has recently given birth, or who is breastfeeding may have to be suspended from work on maternity grounds if continued attendance might damage her, or the baby's health.
In general, the duty to suspend from work does not arise unless and until the employee has given the employer written notice that she is pregnant, has given birth within the previous six months, or is breastfeeding.
An employee who is suspended is entitled to full pay, which includes any bonuses or commissions they would have been paid. Their suspension should last until the risk to them, or their baby has been removed.
If the employee unreasonably refuses suitable alternative work the employer doesn't have to pay them.
An employee is entitled to make a complaint to an industrial tribunal if there is suitable alternative work available which her employer has failed to offer her before suspending her from work on maternity grounds. They can also complain to an industrial tribunal if they don't get the right amount of pay.
Developed withActionsAlso on this siteContent category
Source URL
/content/medical-suspension-maternity-grounds
Links
Employees' right to paid time off for antenatal care
A pregnant employee is entitled to paid time off to attend antenatal care appointments during working hours.
All pregnant employees have the right to reasonable paid time off to attend antenatal care appointments. Employers should bear in mind that the right to paid time off is a right to be permitted time off during working hours and it will not be reasonable for the employer to avoid this by rearranging the individual's working schedule or requiring her to make up lost time.
Antenatal care covers not only medical examinations related to the pregnancy but also, for example, relaxation classes and parent-craft classes. There is no service requirement for this right.
However, the right to time off only applies if the appointment is recommended by a registered midwife, health visitor, registered nurse, or registered medical practitioner (eg a doctor).
Therefore, you are entitled to ask for evidence of antenatal appointments - except in the case of the very first appointment.
You can request that the employee show you:
- written documentation from a registered medical practitioner, a midwife, or a health visitor confirming that she is pregnant
- an appointment card or some other document showing that an appointment has been made
Reasonable time off for medical appointments
The law does not set out what 'reasonable' means regarding time off. Employees must request the time off and have a right not to be unreasonably refused time off. Tribunals are likely to find it unreasonable if an employer refuses to allow time off for appointments that are based on medical advice. Part-time employees should not be pressured to take appointments on their days off.
The amount of time off will depend on the time that the appointment is made, and it will not be unreasonable for an employer to expect an employee to attend for the part of the day that they can outside the appointment time. Time off also includes travelling time and waiting time for appointments. Abuse of the time off provisions may normally be handled under the absence management procedures but should be handled with caution.
Payment during time off
You must pay the employee her normal hourly rate during the period of time off for antenatal care.
Where the employee is paid a fixed annual salary, she should simply be paid as normal. In other cases calculate the rate by dividing the amount of a week's pay by the number of the employee's normal working hours in a week. The normal working hours will usually be set out in her contract of employment.
If her weekly working hours vary, you should average them over the previous 12 complete working weeks. If the employee has yet to complete 12 weeks' service, estimate the average considering:
- what could be reasonably expected from her contract of employment
- the work pattern of any fellow employees in comparable jobs
Overtime is counted only if it is required and contractually guaranteed.
Labour Relations Agency (LRA) guidance on time off work rights and responsibilities.
Complaints relating to time off for antenatal care
A pregnant employee could bring an unlawful discrimination and/or unfair dismissal claim to a tribunal if you:
- dismiss her or treat her unfairly because she tried to exercise her right to time off for antenatal care
- unreasonably refuse her time off for antenatal care
- deny her normal rate of pay during such time off
A pregnant employee can bring a claim regardless of whether or not:
- she actually has exercised the right to paid time off for antenatal care
- that right has actually been infringed
All she has to have done is act in good faith in seeking to assert the right.
See pregnant workers, dismissal and discrimination.
Time off to accompany to antenatal appointments
Following changes to the Work and Families Act (Northern Ireland) 2015, both employees and Agency workers, who have a qualifying relationship with the pregnant woman or her expected child, have the right to unpaid time off to attend up to two antenatal appointments. an agency worker will have rights to antenatal medical appointments and antenatal classes, after completing a 12-week qualifying period on the same assignment if they cannot reasonably arrange them outside working hours. The employee or agency worker must request the time off and cannot simply rely on these provisions as an after-the-fact justification for the absence from work.
A person in a qualifying relationship would include:
- the husband or civil partner of the pregnant woman
- a person who lives with the pregnant woman in an enduring family relationship (including same-sex couples) but is not a relative of that woman
- the father of the expected child
- a woman who is deemed to be the parent of the expected child under the Human Fertilisation and Embryology Act 2008
- either of the intended parents who are expecting a child from a surrogate mother and who are eligible for and intend to apply for a Parental Order (or have obtained such an Order)
The time off for each appointment is capped at 6.5 hours.
Spouse or civil partner
Although the regulations state that a person is in a qualifying relationship with a pregnant woman if he or she is the husband or civil partner of that woman, it is presumably the case that this category would also extend to the wife of the pregnant woman. Paragraph 7.1 of Part 2 of the Marriage (Same-sex Couples) and Civil Partnership (Opposite-sex Couples) (Northern Ireland) Regulations 2019, provides that any reference in legislation to a person who is married is to be read as including a reference to a person who is married to a person of the same sex.
Developed withActionsAlso on this siteContent category
Source URL
/content/employees-right-paid-time-antenatal-care
Links
Pregnant workers, dismissal and discrimination
How employers can ensure they stay on the right side of sex discrimination law and appropriately support pregnant workers.
You must not treat a worker unfairly because she is pregnant. This may result in a claim of sex discrimination. Such unfair treatment includes dismissal.
Pregnancy and dismissal
It is an automatically unfair dismissal if you dismiss - or select for redundancy - an employee solely or mainly:
- for a reason relating to her pregnancy
- because she tried to assert her right to paid time off for antenatal care - see employees' right to paid time off for antenatal care
Only employees can claim unfair dismissal, but all workers can claim unlawful sex discrimination if they are dismissed or treated unreasonably for a reason relating to their pregnancy.
Sex discrimination
It amounts to unlawful sex discrimination if you:
- treat a pregnant worker unfairly for a reason relating to her pregnancy
- dismiss a pregnant worker solely or mainly for a reason relating to her pregnancy
- dismiss - or select for redundancy - a pregnant employee solely or mainly for a reason relating to her pregnancy
- dismiss - or select for redundancy - a pregnant employee solely or mainly because she tried to assert her right to paid time off for antenatal care - see employees' right to paid time off for antenatal care
- refuse to interview or employ a job applicant solely or mainly on the grounds that she is pregnant (or you believe that she may be, or may become, pregnant)
You can never justify this type of discrimination.
As pregnancy-related dismissals are discriminatory, it's likely that a pregnant employee would not only claim unfair dismissal but also unlawful sex discrimination. There is a limit on the amount of compensation a tribunal can award for unfair dismissal but not for unlawful discrimination.
A pregnant worker would only be able to claim unlawful sex discrimination, but there is still no limit on any tribunal compensation they might receive.
Developed withActionsAlso on this siteContent category
Source URL
/content/pregnant-workers-dismissal-and-discrimination
Links
Breastfeeding and the workplace
How employers can support employees to continue breastfeeding on their return to work after maternity leave.
There are business benefits for employers who take proactive steps to discuss and promote breastfeeding with employees returning from maternity leave to help facilitate their transition back to work.
Business benefits
- Increased motivation of employees and a better working culture, leading to greater flexibility and better communication.
- Health and wellbeing benefits to your employees.
- Reduction in absenteeism and staff turnover.
- Increased quality, greater levels of innovation and creativity, and improved productivity.
- Overall improved customer service.
- Raised public image of the company and competitive advantage, making it more attractive as an employer of choice.
- Contributes to an inclusive working culture.
Breastfeeding and rest periods
Employers are required by law to provide somewhere for breastfeeding employees to rest. Where necessary, this should include somewhere for them to lie down.
Although there is no legal right for an employee to take time off from their job in order to breastfeed, express milk for storage and later use, or take rest periods you should consider adapting working hours to enable an employee to continue to breastfeed or express milk. A refusal to adapt working hours could be indirect sex discrimination unless the employer can show the refusal is justified by the needs of the business.
Breastfeeding facilities
Employers are legally required to provide somewhere for breastfeeding employees to rest. Where necessary, this should include somewhere for them to lie down. Employers should consider providing a private, healthy and safe environment for employees to express and store milk, for example, it is not suitable for new mothers to use toilets for expressing milk.
Breastfeeding workplace policy
It is good practice to have a written workplace policy on breastfeeding clearly outlining the employer and employee's responsibilities. This will provide clarity around how requests can be made and will be considered by the employer. This will assist you in making objective, correct, and fair decisions. Implementing such a workplace policy demonstrates your principles and commitment as an employer to supporting employees who are breastfeeding to help create a positive and inclusive workplace where discrimination in any form is unacceptable and will not be tolerated.
Workplace health and safety for breastfeeding employees
There may be a number of risk factors in the workplace that may be harmful to a breastfeeding employee or her child’s health. You should take steps to identify these risks and consider how you can remove them for the safety of your employees.
For further information, see health and safety of pregnant workers.
Developed withActionsAlso on this siteContent category
Source URL
/content/breastfeeding-and-workplace
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Fertility treatment and the workplace
How employers can support employees undergoing fertility treatment.
A woman undergoing fertility treatment, such as in vitro fertilisation (IVF), is treated as being pregnant after fertilised eggs have been implanted. If the implementation fails, the protected period, during which a woman must not be treated unfavourably on the grounds of her pregnancy, ends two weeks later.
It is unlawful sex discrimination for employers to treat a woman less favourably because she is undergoing fertility treatment or intends to become pregnant. A woman will be entitled to paid time off for antenatal care only after the fertilised embryo has been implanted. See having a child through IVF.
Supporting employees going through fertility treatment
For employees undertaking fertility treatment, it can be a long and difficult road both emotionally and physically. There will be obvious practicalities of medical appointments, getting used to new medications, and perhaps undergoing medical procedures. Employer understanding, support, and flexibility can often make a significant difference to someone at a difficult and potentially challenging time of their life. It's not just women who may require support, their partner may also require support and understanding in their difficult journey through fertility treatment.
Due to the personal nature of fertility treatment, employers should recognise and respect that employees have a right to privacy and may choose not to ask for support or wish for the matter to remain confidential. However, developing a compassionate culture with explicit support for employees going through fertility treatment can help overcome the taboo and encourage individuals to access the support they need.
Having a clear policy in place which tells people about the support the employer can offer, might go some way to breaking down the barriers, provided they feel their employer can be trusted to treat them fairly and they won't be penalised in some way. Raising awareness of fertility treatment amongst your workforce and equipping line managers on what to say and how to offer support through appropriate education and training can also help employees open up and feel comfortable asking for help.
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Pay and time off on public and bank holidays
In this guide:
- Know how much holiday to give your staff
- Advantages of managing staff holiday entitlement
- Holiday entitlement and statutory holiday pay
- Calculate holiday entitlement and holiday pay
- Calculating holiday entitlement for atypical workers
- Holiday entitlement for employees on statutory family-related leave
- Pay and time off on public and bank holidays
- Taking holiday - notice periods, restrictions and sickness
- Holiday pay on termination of employment
- Managing staff holiday entitlement: five top tips
Advantages of managing staff holiday entitlement
Details the advantages of managing holiday entitlement for workers in your business.
It is beneficial to both your business and your staff if you manage holiday entitlement correctly.
Disagreements over holidays and holiday pay are common if entitlements are not clearly agreed upon and set out in writing. These disagreements could lead to a deterioration in your relationship with your staff and possible complaints to industrial tribunals.
In addition, almost all workers above school leaving age are entitled to statutory paid holiday entitlement, so you should be aware of what this means for your business and manage how it is worked out for each worker.
Advantages of managing staff holiday entitlement
Effectively managing staff holiday entitlement can bring several business benefits:
Staff motivation
Staff who can take regular holidays can feel more valued and become more motivated about their work, which helps them perform more effectively.
Reduction in stress and mistakes
Having a break from the workplace ensures staff are less prone to mistakes or accidents and less likely to suffer from stress because they have regular opportunities to rest.
Fair treatment
Having an annual leave policy and including paid holiday entitlement in employees' employment contracts ensures the rules and processes are clear to everyone. This will help you to take a consistent approach to annual leave across the business so that employees feel they have been treated fairly.
Prepare and plan for leave
Having an annual leave policy and appropriate procedures in place also minimises the opportunity for disputes. A worker is more likely to be granted an annual leave request if the appropriate procedure has been followed and they have given you sufficient notice of the leave so you can prepare for the absence.
Less sick leave and staff turnover
You should also experience a decrease in sick leave and staff turnover because staff feel more appreciated overall and are less likely to resort to sick leave when they need to take time off work.
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Holiday entitlement and statutory holiday pay
Minimum statutory annual leave entitlement, unused holidays, and how to set these arrangements out in writing.
Almost all workers above school leaving age - not just employees but also, for example, agency and casual workers - are entitled to 5.6 weeks of paid holiday per leave year (28 days for a worker working a five or six-day week).
The 5.6 weeks is a minimum holiday entitlement - you can choose to offer more.
You can count any days off for public or bank holidays towards a worker's statutory holiday entitlement - but only as long as you pay them for those days off. See bank and public holiday dates.
Workers below school leaving age must have a two-week break during school holidays. Read more on employing children and young people.
When leave years may start
You may decide to have one date when your business' leave year starts or have different start dates for individual workers (or groups of workers).
If you do not have written leave arrangements, a leave year will start on the date a worker's employment begins and on each subsequent anniversary of that date.
Holiday entitlement: staff working a six-day week
The statutory paid holiday entitlement is capped at 28 days.
Although 5.6 weeks would equal 33.6 days for someone working a six-day week (5.6 x 6), because of the cap, staff working a six-day week are only entitled to 28 days' paid holiday. However, that is the minimum statutory allowance. If you wish you can increase the holiday entitlement under an employee's contract of employment.
Holiday entitlement and the contract of employment
You must set out an employee's paid holiday entitlement in their written statement of terms and conditions of employment.
This should enable them to work out their entitlement and pay for any untaken holiday if they leave. See the employment contract.
Workers not entitled to the statutory minimum paid holiday entitlement
The following types of workers do not have the right to benefit from the minimum paid holiday entitlement:
- The genuinely self-employed, who can take as little or as much holiday as they choose.
- Those whose jobs may conflict with the requirement to take annual leave requirements, eg the armed forces, the police, and those involved in civil protection (these workers have to rely on their contracts of employment for their rights to holiday).
- Workers in some sectors are excluded from the Working Time Regulations (Northern Ireland) 2016 because they are covered by separate regulations. The entitlement to annual leave of mobile staff working in the civil aviation sector, for example, is governed by the Civil Aviation (Working Time) Regulations 2004.
Carrying over unused paid holiday
A worker may wish to carry over unused holidays from the current leave year to the next.
Under European Union (EU) derived law, a worker must take at least 4 weeks holiday per leave year. If they take less than this, they cannot carry it over.
However, in the UK, the statutory entitlement is 5.6 weeks. What a worker may do with the additional 1.6 weeks depends on their employer's arrangements. You can either:
- have an arrangement that workers must take their full statutory entitlement of 5.6 weeks in any leave year
- allow workers to carry over any of the additional 1.6 weeks that remain untaken into the next leave year - although they must take it by the end of the next leave year
If an employee has an additional contractual entitlement over and above the 5.6 weeks, it again depends on their contract of employment whether or not they can either carry it over or will receive pay in lieu for any of the entitlement that remains untaken.
If you do allow workers to carry over any contractual annual leave entitlement, you can have your own rules on when they must take it. For example, you could state that workers must take the carried-over leave within three months of the start of the next leave year.
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Calculate holiday entitlement and holiday pay
Guidance for employers on how to calculate holiday entitlement, calculate holiday pay, and what to do with untaken leave.
A worker's entitlement to paid annual leave starts on the first day of employment and is not subject to a minimum period of employment.
Holiday entitlement accrual
The Regulations permit an employer to operate a holiday accrual system for workers who are in their first year of employment (only). In practice, this means that a new worker will accrue one-twelfth of their annual holiday entitlement each month they are employed. This will apply from the start of each month.
Calculating holiday pay
For each week of leave accrued, workers are entitled to one week's normal pay. A week's pay is calculated according to the type of work carried out:
- for workers on fixed hours and pay, it equals the amount due for a week's work, averaged over the preceding 12 weeks
- for workers on fixed hours and variable pay (bonus, commission, or piece workers), it equals the average hourly rate (over the preceding 12 weeks) multiplied by the normal working hours in a week
- for shift workers, it equals the average weekly hours of work in the preceding 12 weeks at the average hourly rate
- for workers with no normal working hours, a week's pay is the average pay received over the preceding 12 weeks.
The 12-week reference period should be made up of 12 weeks in which pay was due to the worker. Any week in which no remuneration was payable to the worker should be discounted, as should any weeks where the employee was for any amount of time on sick leave, maternity leave, adoption leave, shared parental leave, parental leave, paternity leave, or parental bereavement leave.
If any weeks are discounted, ie, no pay was received for a particular week, or the worker was on statutory leave as outlined above, earlier weeks should be considered until you get as close to 12 weeks as possible. In these circumstances, the maximum period you can go back is 24 weeks.
If the worker has been employed for less than 12 weeks, holiday pay is based on the number of complete weeks for which the worker has been employed.
Calculate holiday pay for hourly paid staff
To calculate the average hourly rate, you only count the hours where the worker was working and the pay that related to those hours.
Staff should receive the same pay during any holiday period as they would if they were at work. Therefore, when calculating holiday pay for the 4 weeks of paid holiday leave derived from European law, an employer must include payments which are intrinsically linked to the performance of tasks the employee is obliged to carry out under the terms of the contract. This includes commission, bonuses, regularly paid allowances, and payment for additional hours the employee normally and repeatedly works. Other payments, such as overtime payments regularly paid to the employee, should also be included, as should payments for professional or personal status relating to length of service, seniority, or professional qualifications. Employers may decide to extend this calculation to the full 5.6 weeks' statutory paid holiday entitlement, but they do not have to.
However, case law has suggested all paid annual leave should be treated as a composite whole where each day of a holiday a worker takes includes, on a fractional basis, the various elements making up their total holiday entitlement (whether they be contractual or statutory). Employers should take this into account when making holiday payments where they are only applying the law on overtime, commission, allowances, bonuses, etc (as outlined above) to the 4 weeks of holiday derived from European law to ensure underpayments of holiday pay are avoided.
The question of how much pay a worker is due during a period of holiday can be complex and has been the subject of several court judgments. Further information is available from the LRA Workplace Information Service on Tel 03300 555 300.
Calculate holiday entitlement for your employees.
Payments for untaken statutory holiday
In the UK, the statutory annual leave entitlement is 5.6 weeks. A worker must take at least four weeks' paid holiday per leave year.
What a worker does with the remaining 1.6 weeks depends on their employment contract.
For example, you could allow them to carry those 1.6 weeks into the next leave year or state that all 5.6 weeks must be taken by the end of the leave year.
However, you cannot make a payment in lieu of any days that remain untaken. The only time you can make a payment in lieu of the statutory holiday entitlement is when the contract of employment terminates, and the worker has accrued entitlement to holidays and is unable to take them before they leave.
Payments for untaken contractual holiday
At the end of a leave year, you may find you have an employee who has some untaken contractual annual leave, ie, annual leave over and above the statutory minimum of 5.6 weeks.
Depending on their employment contract, the employee may be entitled to either carry over the untaken days or receive a payment in lieu of those untaken days.
When to pay workers their statutory holiday pay
Workers must receive their statutory holiday pay at the time that leave is taken.
It's, therefore, unlawful not to pay a worker while they are on holiday and pay them an allowance as part of their wages or salary instead - a system known as rolled-up holiday pay.
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Calculating holiday entitlement for atypical workers
How to work out statutory paid annual leave for part-time staff, shift workers, casual workers, and others.
There are various ways of working out the holiday entitlement for workers who don't have regular working arrangements or patterns.
Part-time workers
Paid holiday entitlement is calculated pro rata for part-time workers.
For example, if a member of staff works three days a week, they are entitled to 16.8 days (5.6 x 3).
Shift workers
It is sometimes easier to calculate holiday entitlement as shifts.
For example, if a member of staff works four 12-hour shifts followed by four days off, the average working week is 3.5 12-hour shifts. So 5.6 weeks' holiday is 5.6 x 3.5 = 19.6 12-hour shifts.
For other shift patterns, it may be easiest to calculate according to the established repeating pattern.
More irregular working patterns: calculating holidays in hours
Annualised hours
If a member of staff works annualised hours, you need to calculate how many hours a week they work on average over the whole year.
For example, if a member of staff works a total of 1,600 hours a year, or 34.48 hours a week over 46.4 weeks of the year, the holiday entitlement is 5.6 weeks x 34.48 hours a week = 193.09 hours of holiday for the year.
Compressed hours
For someone working compressed hours, for example, a 36-hour week over four days instead of five, their annual holiday entitlement is 36 hours x 5.6 weeks = 201.6 hours of holiday for the year.
Rather than taking a day's holiday, they would take the number of hours that they would have otherwise worked on that day (ie for 36 hours worked over four days, they would take nine hours' holiday for each day otherwise worked).
Calculating no fixed hours contracts (casual work, including zero-hours contracts)
To calculate the average hourly rate, only the hours worked and how much was paid for them should be counted. Take the average rate over the last 12 weeks.
A 'week' usually runs from Sunday to Saturday. Only use another 7-day period (like Thursday to Wednesday) if that's how a worker's pay is calculated.
You can also get further information from the LRA Workplace Information Service on Tel 03300 555 300.
Part days
Calculations may result in part days, eg 22.4 days for someone working four days a week. In some cases, it may be easier to work the holidays out in hours.
If this is the case, you could:
- Allow the worker to leave early or arrive late one day. For example, for someone working an eight-hour day taking 0.4 of a day's holiday, you could allow them to leave after working for four hours and 48 minutes (480 minutes x 0.6 of a working day = 288 minutes) or allow them to arrive three hours and 12 minutes late (0.4 of a working day).
- Round the entitlement up to the nearest full day - or half day if this is still easy for you to administer. You cannot round entitlements down.
- Allow the worker to carry the part day over into the next leave year (and then perhaps round up to the nearest full day).
- Pay them for a part day. However, you can only do this if the worker's paid holiday entitlement is more than 5.6 weeks, as you cannot pay a worker in lieu of an untaken statutory holiday - see calculating and paying holiday pay.
Term-time or part-year workers
Recent case law has determined that workers employed on a continuous contract throughout the year, and who work for varying hours during certain weeks of the year, such as those who work only term time, are entitled to 5.6 weeks of leave each year. This entitlement applies even though there are some weeks in the year when they do not work.
In such instances, holiday pay is calculated by averaging the pay received during the 12 weeks before the commencement of their leave. If there are weeks during the 12-week period where no pay was received, these weeks are disregarded, and the employer must count back to include a total of 12 weeks in which pay was received.
Although there may be times when a part-year worker receives a higher payment than a full-time worker, this is compliant with the Part-Time Workers (Prevention of Less Favourable Treatment) Regulations (Northern Ireland) 2000, as the part-time worker is not being treated less favourably. There is no legislative provision to prevent part-time workers from being treated more favourably.
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Holiday entitlement for employees on statutory family-related leave
Holiday entitlement for staff on family-related leave.
Employees taking statutory maternity, adoption, paternity, parental leave, and parental bereavement leave will continue to accrue statutory paid holiday and, in many cases, any contractual holiday entitlement. If, by the end of the current holiday year, an employee has been prevented from taking part or all of their holiday leave entitlement due to being on one of these types of statutory leave, they have a right to carry over up to 5.6 weeks untaken statutory holiday leave into the new holiday year.
Holiday entitlement and maternity/adoption leave
Employees on maternity or adoption leave continue to accrue both statutory and any contractual paid holiday during both ordinary and additional maternity/adoption leave.
A statutory paid holiday cannot be taken at the same time as maternity/adoption leave. When you are planning for the maternity/adoption leave, you may wish to discuss taking any outstanding holiday and perhaps delay the start of their maternity/adoption leave.
Alternatively, it may be possible for them to take holiday at the end of the maternity/adoption leave period.
If a new holiday year starts, the employee is on maternity/adoption leave and holidays haven't been taken, the employee has a right to carry over up to 5.6 weeks of untaken statutory holiday leave to the new holiday year.
When you are planning, you should be aware that maternity and adoption leave cannot start later than the date of the child's birth or placement for adoption, so an early birth or placement could shorten the amount of annual leave the employee is able to take.
Read more on maternity leave and pay and adoption leave and pay.
Holiday entitlement and paternity leave
Employees continue to accrue their statutory and any contractual paid holiday entitlement while they are on statutory paternity leave.
Read more on paternity leave and pay.
Holiday entitlement and shared parental leave
Employees continue to accrue their statutory and any contractual paid holiday entitlement while they are on shared parental leave.
Read more on shared parental leave and pay.
Holiday entitlement and parental leave
Employees continue to accrue their statutory paid holiday entitlement while they are on parental leave. They will also continue to accrue contractual holiday entitlement if this is provided for in their contract of employment.
See parental leave and time off for dependants.
Holiday entitlement and parental bereavement leave
Employees continue to accrue their statutory paid holiday entitlement while they are on parental bereavement leave. They will also continue to accrue contractual holiday entitlement if this is provided for in their contract of employment.
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Pay and time off on public and bank holidays
Including bank and public holidays as part of your workers' statutory paid holiday entitlement.
You do not have to give staff paid time off for bank and public holidays. However, you should set out in a worker's contract:
- any right to time off on bank and public holidays
- whether or not that time off is paid
- what you will pay them if they work one of these days, ie, whether you will pay the normal rate of pay or an enhanced rate, eg, time-and-a-half or double time
Note that if you allow a worker time off for bank and public holidays over a significant period of time, it may become an implied term of their contract via custom and practice, ie, the term is not actually written in the contract document but is still part of the contract.
Part-time staff
Part-time staff have the same entitlement to leave as full-time workers. Therefore, if full-time staff are given paid leave for bank and public holidays, part-time workers should also receive this benefit on a pro-rata basis.
This can be a problem if most of the bank and public holidays fall on days when a part-time worker doesn't normally work.
A best practice example is as follows:
An employer has both part-time and full-time staff. In a particular year, there are ten bank/public holidays. The full-time staff work a five-day week, Monday to Friday. There are also part-time staff working a two-day week, some on Monday and Tuesday, some on Wednesday and Thursday, and some working varying days.
The employer allows all workers a day off in respect of all bank/public holidays falling on a day they would ordinarily have worked. Furthermore, for those part-time staff working Wednesday and Thursday (or varying days) who would never (or rarely) work on the day a bank/public holiday falls, the employer allows them a pro-rata entitlement of days off in lieu based on the number of days they work, by way of best practice. They, therefore, receive two-fifths of the ten-day entitlement.
This approach ensures that all workers enjoy a share of the benefits received by full-time staff.
Read more on employing part-time workers.
Bank and public holiday dates
When the Christmas and New Year public holidays fall on a weekend, other weekdays are declared public holidays. These are usually the following Monday and, if necessary, the Tuesday.
If a worker normally works weekends, and Christmas Day, Boxing Day or New Year's Day fall on a weekend, entitlement to time off depends on their employment contract. This may be something that is explicitly agreed upon in the terms of the contract or could have been incorporated through custom and practice.
However, entitlement will not depend on the contract if you are operating on the statutory entitlement of 5.6 weeks.
See bank and public holidays in Northern Ireland.
Special bank holidays
Dates of bank holidays can be changed or extra holidays declared to celebrate special occasions. For example, there was an extra bank holiday on Monday 8 May 2023 to mark the coronation of His Majesty King Charles III.
A worker's minimum paid annual leave entitlement is 5.6 weeks. There is no statutory time off for bank holidays and public holidays. However, you may choose to include these as part of that worker's entitlement.
Where a worker's contract states they are entitled to the statutory minimum annual leave, an extra bank holiday would not increase their paid holiday entitlement.
However, if a worker had a contract that entitles them to 20 days' annual leave plus all bank and public holidays, they should be entitled to the additional bank holiday as annual leave.
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Taking holiday - notice periods, restrictions and sickness
Holiday request procedures, notice periods what to do when workers are sick.
Workers must give you notice that they wish to take leave. You can agree on the notice period with your workers and should set this out in writing.
If there is no agreement in place, they must give notice of at least twice the length of the intended leave period. You must reply within the same length of time as the intended leave.
For example, if the worker gives two days' notice for one day's leave, you must reply within one day. Even if the worker gives sufficient notice, you may still refuse the request - but be as reasonable as you can. You should retain a record of the refusal reason, and act consistently with respect to any refusals, within reason.
Restricting when holiday may be taken
You may restrict the taking of leave. Restrictions could:
- be stated in the employment contract
- have built up via custom and practice
- be negotiated with trade unions or employee representatives
Examples include:
- specifying periods when leave may or may not be taken
- capping the amount of leave that can be taken at any one time
- shutting down for certain periods, eg, between Christmas and New Year or for two weeks in August
If you don't have an agreement for taking leave and you want workers to take all or part of their holiday entitlement on certain dates, you must give notice of at least twice as long as the leave period.
Resolve clashes between requests for leave by considering the needs of the business, eg peak season or a quieter period, the individual circumstances, or by setting out clear rules for booking leave. It may be helpful to formalise cover for key staff on annual leave.
If you set restrictions on when holidays can be taken, bear in mind the need to avoid indirect discrimination - read more on how to prevent discrimination and value diversity.
You should also note that it's unlawful to prevent a worker from taking their statutory paid holiday entitlement. Therefore, you may have to allow a worker's annual leave request right at the end of the leave year to ensure that they have taken their full entitlement of 5.6 weeks or 4 weeks where you have agreed carry over.
Workers will also be able to carry over up to 4 weeks of holiday leave where:
- the employer fails to recognise a worker's right to paid holiday leave
- the employer fails to give the worker a reasonable opportunity to take holiday leave or to encourage them to do so
- the employer fails to inform the worker that any holiday leave not taken by the end of the holiday leave year, which cannot be carried over, will be lost
Accruing annual leave during sick leave
A worker continues to accrue their statutory minimum holiday entitlement as normal while absent from work due to sickness. This is regardless of how long the period of sickness lasts.
Depending on the terms of their employment contract, they may also accrue any additional contractual annual leave that they would normally be entitled to.
Taking annual leave during sick leave
A worker is entitled to take statutory annual leave while on sick leave.
If the worker chooses to take annual leave while they are on sick leave, but they are not receiving any sick pay, you pay them their normal holiday pay.
A worker is most likely to choose to take annual leave while on sick leave if they are:
- not entitled to sick pay of any kind
- on sick leave for a long period and, as a result, you have stopped paying them sick pay
- due to return to work shortly before the end of the leave year and, as a result, would be unable to take their full holiday entitlement following their return to work
Changing annual leave to sick leave
A worker can choose to change a period of annual leave during which they are sick to sick leave. This would occur if they either:
- became sick while on annual leave
- have a period of sick leave that continues into a pre-arranged period of annual leave
Once the worker returns to work, they can then make arrangements to take the annual leave they missed at a later date.
Where a worker is on sick leave instead of annual leave, you should consider asking them for evidence of their sickness in line with your usual sickness absence procedures and in line with any eligibility criteria for statutory sick pay.
For example, to qualify for full pay while sick, you could:
- require a worker to inform you as soon as reasonably possible that they are sick
- request that they provide you with medical evidence of that sickness
For more information about sick pay, see understanding statutory sick pay.
Carrying over annual leave that is left untaken due to sickness
If a worker is unable to take all their statutory annual leave entitlement within a leave year because of illness, they will be entitled to carry forward up to 4 weeks of the unused statutory entitlement to the next leave year. Holiday leave carried over in this way must be taken by the end of the period of 18 months from the end of the holiday leave year in which the entitlement originally arose.
If you need further advice on sick leave and/or annual leave, you should contact the Labour Relations Agency Workplace Information Service on Tel 03300 555 300.
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Holiday pay on termination of employment
Calculating holiday pay when workers leave your employment.
When your workers leave a job - even if you have dismissed them without notice for gross misconduct - they must receive pay for any statutory leave they are entitled to in the current leave year but have not taken.
This entitlement is not subject to a minimum period of employment.
Formula to calculate pay due to workers who resign
You can work out the pay due using the simple formula (A x B) - C, where:
- A is the total holiday entitlement for the year
- B is the fraction of the year to the date of leaving
- C is the amount of holidays already taken
Example: Part-time worker
For example, a part-time worker works three days per week. Like all workers, they are entitled to 5.6 weeks of paid annual leave.
They leave a job seven months into the leave year, having taken eight days off. This is the equivalent of 2.66 weeks (8 ÷ 3).
Applying the formula above: 5.6 x (7 ÷ 12) - 2.66 = 0.61 weeks' leave to be paid in lieu.
Note that, if you need to, you should round this figure up to prevent underpayment.
If you pay a worker on a daily basis, you can also work out their outstanding holiday entitlement in days.
Example: Full-time worker
For example, a worker working five days per week is entitled to 5.6 weeks per year, the equivalent of 28 days (5.6 x 5).
They leave a job three months into the year, having taken four days off.
Applying the formula above: 28 x (3 ÷ 12) - 4 = 3 days' leave to be paid in lieu.
Note that, if you need to, you should round this figure up to prevent underpayment.
You need to get the worker's signed agreement to make a deduction from the final payment to them for any leave taken over their entitlement.
Calculate pay when workers fail to give the correct period of notice
Holiday pay would usually sit separately from notice entitlement and would be earned up to the date the worker leaves your employment.
However, if a worker leaves employment without giving the correct period of notice, they could be in breach of their employment contract if the contract contains a clause stating what will happen if this occurs eg deductions will be made from earned pay.
Calculating leave pay due to workers who you dismiss
If you dismiss a worker, they have the right to be paid for leave accrued during their period of employment, no matter how short it was.
To work out B when using the formula above, you need to know the worker's termination date.
If you dismiss a worker with notice, the termination date is the date the notice period expires.
If you dismiss a worker without notice, the termination date is the date you summarily dismissed the worker.
An employee's written statement of employment particulars should contain information to enable them to calculate their entitlement to accrued holiday pay when they leave.
Taking annual leave during the notice period
A worker may wish to take some or all of their outstanding annual leave as part of their notice period. This should be treated the same as for any other holiday request - taking into account your usual procedure for authorising annual leave. Read more on taking holiday - notice periods, restrictions and sickness.
You can also insist by giving appropriate notice, or because it is clearly expressed in the contract of employment, that a worker takes any holiday owed to them as part of their notice period.
If a worker takes part of their paid leave entitlement during their notice period, you may reduce their notice pay by the amount of holiday pay, provided it is in respect of the same leave year.
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Managing staff holiday entitlement: five top tips
Follow these tips to help you successfully manage each worker’s holiday entitlement.
The majority of your workers are legally entitled to paid holidays. The following top tips will help you to successfully manage each worker's holiday entitlement.
Tips for employers to manage staff holiday entitlement
1. Calculate holiday entitlement
A worker's statutory paid holiday entitlement starts on the first day of employment and is 5.6 weeks per year (28 days for a worker working a five or six-day week) - see holiday entitlement and statutory holiday pay.
2. Consider irregular hours
Ensure that you work out holiday entitlement for any staff who don't have regular working arrangements. These can include part-time workers, shift workers, and casual workers - see calculating holiday entitlement for atypical workers.
3. Include in employment contracts
Set out your employee's paid holiday entitlement in their employment contract to avoid any disagreements - see the employment contract.
4. Consider bank and public holidays
You do not have to give staff paid time off for bank or public holidays, but ensure that you include this in your employees' contracts. If you allow a worker time off for bank and public holidays over a significant period of time, be aware that it may become an implied term of their contract, even if it is not written in the contract of employment - see pay and time off on public and bank holidays.
5. Agree notice periods
Workers must give you notice if they wish to take leave. You can agree the notice period with them and you should set this out clearly in writing - see taking holiday - notice periods, restrictions, and sickness.
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Employment-protection rights for employee representatives
In this guide:
- Working with non-union representatives
- Employee representatives
- Employee representatives during collective redundancy situations
- Employee representatives during business transfers
- Pension representatives
- Representation for workforce agreements
- Ongoing information and consultation arrangements
- Ongoing consultation on health and safety matters
- Employment-protection rights for employee representatives
- Working effectively with employee representatives
Employee representatives
Understand the role of employee representatives and situations when you may need to consult them on issues affecting your workforce.
What is an employee representative?
Employee representatives may be chosen by their fellow employees or appointed by management. The roles of employee representatives vary but most:
- receive information from and give information to management
- pass on information more widely within the workforce
- are consulted by management over certain workplace matters
Employee representatives operate mainly in businesses that:
- do not recognise a trade union for collective bargaining purposes
- recognise a trade union in respect of some, but not all, of their employees
Why consult employee representatives?
Most of the legal duties to consult employee representatives arise in one-off situations such as large-scale redundancies or business transfers. Therefore, if you do not recognise a trade union, you may not have employee representatives in place at times when those one-off events are not occurring.
However, some businesses have employee representatives in place on a permanent and ongoing basis so that they:
- will not have to arrange for employee representatives to be elected when a legal duty arises
- can inform and consult their workforce about business performance or workplace issues
- can build trust through better workforce communications
- can improve staff engagement and productivity, which in turn can help prevent disputes
When to consult employee representatives
You must consult employee representatives:
- in collective redundancy situations - see employee representatives during collective redundancy situations
- where the employer proposes to dismiss and re-engage 20 or more employees as a result of contract variation
- when employees are transferred from one employer to another - see employee representatives during business transfers
- on certain changes to occupational and personal pension schemes - see pension representatives
In these situations, if you don't already have employee representatives, you will have to arrange for them to be elected - although you don't need to 'force' employees to elect them.
You may also need to consult employee representatives on workforce agreements concerning:
- maternity and parental leave schemes
- the use of successive fixed-term contracts
- working time, eg for daily and weekly rest periods, and rest breaks during the working day
See representation for workforce agreements.
Ongoing consultation with employee representatives
You may have to set up an ongoing information and consultation arrangement with elected employee representatives. This might be not only on a national level but also across the European Union.
However, you only have to do this if the relevant employees make a valid request for such an arrangement.
Read more on ongoing information and consultation arrangements.
Note that you also have a duty to carry out ongoing consultation with employees or their representatives on health and safety matters - see ongoing consultation on health and safety matters.
Voluntary ongoing consultation with employee representatives
If you don't have to inform and consult, you can still come to a voluntary agreement with employee representatives on ways in which they can:
- make employees' views known to management
- help strengthen both management's and employees' understanding of workplace issues and other matters affecting the business
- help create an atmosphere of mutual trust between employees and management and therefore improve workplace relations
Examples of voluntary arrangements with employee representatives include:
- individual informal discussions or formal group meetings
- works councils, eg joint consultative committees and joint working parties where representatives of employers consult employee representatives for their views before making decisions - this could be through regular discussion of matters of mutual concern or by meeting to consider and resolve specific business issues
Representation of individual employees
In non-unionised settings, a worker may want to choose an employee representative to act as their companion because that person may be more familiar with the tasks associated with the role of spokesperson.
Alternatively, they may choose a companion who is either a full-time official employed by a union or a lay union official who has been reasonably certified in writing by their union as having experience of or as having received training in, acting as a worker's companion at disciplinary or grievance hearings. The union official can be from any trade union, regardless of whether that union is recognised by you.
Read more on disciplinary procedures, hearings, and appeals, and handling grievances.
Read the Labour Relations Agency's (LRA's) Code of Practice on Disciplinary and Grievance Procedures.
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Employee representatives during collective redundancy situations
Consulting employee representatives when you are planning to make 20 or more employees redundant.
If a collective redundancy situation arises, you have a legal duty to consult elected employee representatives where:
- you don't recognise an independent trade union
- you recognise an independent trade union (or more than one trade union) to bargain on behalf of a group of employees but some of the employees you plan to make redundant don't belong to that group
You must also consult union representatives where you recognise an independent trade union and where at least one of the employees you plan to make redundant is part of the bargaining group for which the union is recognised.
What is a collective redundancy situation?
A collective redundancy situation is where you plan to make 20 or more employees redundant at one establishment within a 90-day period.
For more information on redundancies in general, see redundancy: the options.
Which employee representatives you should consult with
It is your responsibility to ensure that consultation is offered to appropriate employee representatives.
In some cases, you may need to arrange elections to select employees to carry out this task.
However, if you already work with employee representatives in other capacities - eg where you regularly consult employee representatives in works councils, committees, etc - you may be able to use some or all of them for this purpose and avoid elections.
Where you arrange elections, but no employee wishes to stand, you will have to consult all the affected employees individually.
If there are existing representatives, their remit and method of election or appointment must give them suitable authority from the affected employees. For example, where redundancies are to take place among sales staff, you could not inform and consult a committee of managers set up to consider the operation of a staff canteen.
However, it would be appropriate for you to inform and consult:
- representatives already elected or appointed under the Information and Consultation of Employees Regulations (Northern Ireland) 2005 - see ongoing information and consultation arrangements
- a pre-existing committee of employees, such as a works council or staff forum, that you regularly engage with more generally about the business's financial position and/or personnel matters
Arranging the election of employee representatives
If the employee representatives are to be elected specifically for the redundancy consultation, certain election conditions must be met.
When arranging to elect employee representatives, you must:
- make such arrangements as are reasonably practical to ensure that the election is fair
- determine the number of representatives to be elected so that there are enough representatives to represent the interests of all the affected employees, taking into account the number and classes of those employees
- determine whether the affected employees should be represented either by representatives of all the affected employees or by representatives of particular classes of those employees
- before the election, determine the employee representatives' term of office so that it is long enough to enable relevant information to be given and consultations to be completed
- ensure that the candidates for election as employee representatives are affected employees on the date of the election
- ensure that no affected employee is unreasonably excluded from standing for election
- ensure that all affected employees on the date of the election are entitled to vote for employee representatives
- ensure that the employees entitled to vote may vote for as many candidates as there are representatives to be elected to represent them or, if there are to be representatives for particular classes of employees, for as many candidates as there are representatives to be elected to represent their particular class of employee
- hold the election in a way to ensure that, so far as is reasonably practicable, those voting do so in secret, and the votes given at the election are accurately counted
If an elected employee representative ceases to act as one and, as a result, certain employees are no longer represented, you must hold another election satisfying the rules set out at 1, 5, 6, and 9 above.
The law does not state how many representatives you must elect or the exact process for choosing them. However, you need to consider whether:
- the employees have enough time to nominate and consider candidates
- the employees - including any employees absent from work for whatever reason - can freely choose who to vote for
- the arrangements adequately cover all the classes of employees who may be affected by the redundancy situation and provide a reasonable balance between the interests of the different groups
- you have any normal custom and practice in your business for arranging and holding such elections and, if so, whether you have a good reason to depart from it, if you think you need to
Where you give affected employees a genuine opportunity to elect representatives, but the employees fail to do so, you must provide relevant information to all affected employees individually.
Rights of employee representatives
Employee representatives in redundancy situations have certain rights, which - if you breach them - could lead to an industrial tribunal claim against you.
See employment-protection rights for employee representatives.
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Employee representatives during business transfers
Consulting employee representatives when employees are transferring from one employer to another.
If you are involved in a business transfer or service provision change - either because you are transferring employees to another employer or because you are receiving employees from another employer - you are responsible for informing and consulting the employees concerned.
You must consult elected employee representatives during such a transfer if:
- you don't recognise an independent trade union
- you recognise an independent trade union (or more than one trade union) to bargain on behalf of a group of employees but some of the employees affected by the transfer don't belong to that group
You must also consult union representatives where an independent trade union is recognised and where at least one employee affected by the transfer belongs to the bargaining group for which the union is recognised.
For more information on business transfers in general, see responsibilities to employees if you buy or sell a business.
Which employee representatives you should consult with
It is your responsibility to ensure that consultation is offered to appropriate employee representatives.
In some cases, you may need to arrange elections to select employees to carry out this task. However, if you already work with employee representatives in other capacities - eg where you regularly consult employee representatives in works councils, committees, etc - you may be able to use some or all of them for this purpose and avoid elections.
Where you arrange elections, but no employee wishes to stand, you will have to consult all the affected employees individually.
For more information on business transfers and the obligation to inform and consult when employees are being transferred to a new employer, see responsibilities to employees if you buy or sell a business.
If there are existing representatives, their remit and method of election or appointment must give them suitable authority from the affected employees. For example, if the affected employees are all located at one site, it would clearly not be enough to inform and consult representatives based solely at another site - even if they are part of the same business.
However, it would be appropriate for you to inform and consult:
- representatives already elected or appointed under the Information and Consultation of Employees Regulations (Northern Ireland) 2005 - see ongoing information and consultation arrangements
- a pre-existing committee of employees, such as a works council or staff forum, that you regularly inform or consult with more generally about the business's financial position and/or personnel matters
Arranging the election of employee representatives
If the employee representatives are to be specially elected, certain election conditions must be met.
When arranging to elect employee representatives, you must:
- make such arrangements as are reasonably practical to ensure that the election is fair
- determine the number of representatives to be elected so that there are enough representatives to represent the interests of all the affected employees, taking into account the number and classes of those employees
- determine whether the affected employees should be represented either by representatives of all the affected employees or by representatives of particular classes of those employees
- before the election, determine the employee representatives' term of office so that it is long enough to enable relevant information to be given and consultations to be completed
- ensure that the candidates for election as employee representatives are affected employees on the date of the election
- ensure that no affected employee is unreasonably excluded from standing for election
- ensure that all affected employees on the date of the election are entitled to vote for employee representatives
- ensure that the employees entitled to vote may vote for as many candidates as there are representatives to be elected to represent them or, if there are to be representatives for particular classes of employees, for as many candidates as there are representatives to be elected to represent their particular class of employee
- hold the election in a way to ensure that, so far as is reasonably practicable, those voting do so in secret, and the votes given at the election are accurately counted
If an elected employee representative ceases to act as one and, as a result, certain employees are no longer represented, you must hold another election satisfying the rules set out at 1, 5, 6, and 9 above.
The law does not state how many representatives you must elect or the exact process for choosing them. However, you need to consider whether:
- the employees have enough time to nominate and consider candidates
- the employees - including any employees absent from work for whatever reason - can freely choose who to vote for
- the arrangements adequately cover all the classes of employees who may be affected by the transfer and provide a reasonable balance between the interests of the different groups
- you have any normal custom and practice for arranging and holding such elections and, if so, whether you have a good reason to depart from it, if you think you need to
Where you give affected employees a genuine opportunity to elect representatives, but the employees fail to do so, you must provide relevant information to all affected employees individually.
Right of employee representatives
Employee representatives in transfer situations have certain rights, which - if you breach them - could lead to an industrial tribunal claim against you. See employment-protection rights for employee representatives.
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Pension representatives
Consulting employee representatives on pension matters.
If you operate an occupational pension scheme (OPS) or make direct payments to a personal pension scheme (PPS), you may have to consult employees and/or their representatives if you wish to change certain scheme conditions or arrangements.
Consulting representatives on changes to an OPS or PPS
You have a legal duty to consult with representatives if certain changes are proposed to any OPS you offer to your staff.
Such changes might be:
- an increase in the normal pension age
- closure of the OPS to some or all new members
- increasing member contributions in some or all cases
- stopping future accruals in the OPS to some or all members
If you make direct payments to a PPS, you must consult representatives where you propose to:
- stop making contributions for some or all members
- reduce your contribution for some or all members
- require some or all members to increase their contributions
You must consult with the representatives of as many affected members as is reasonably practicable.
Subject to that requirement, you could choose to work with one or more of the following:
- previously elected pensions representatives
- representatives of a recognised independent trade union - read more on recognising and derecognising a trade union
- representatives already elected or appointed under the Information and Consultation of Employees Regulations (Northern Ireland) 2005 - see ongoing information and consultation arrangements
- a pre-existing committee of employees, such as a works council or staff forum, that you regularly inform or consult with more generally about business and/or personnel issues
You could also choose to consult directly with employees if provision is made for this in the terms of a pre-existing committee of employees or an agreement you negotiate with any of the types of representative listed.
If you don't already have any such representatives in place, you should arrange for them to be elected.
Election of representatives
The legislation sets out a number of other requirements for election eg
- The requirements of this paragraph are that-
(a) the employer must make such arrangements as are reasonably practicable to ensure that the election is fair;
(b) the employer must determine the number of representatives to be elected so that there are sufficient representatives to represent the interests of active members and the interests of prospective members;
(c) the employer must determine whether the active and prospective members should be represented by representatives of all such members or by representatives of particular descriptions of such members;
(d) before the election, the employer must determine the term of office as representative of active and prospective members;
(e) the candidates for election must be active or prospective members of the scheme on the date of the election;
(f) no active or prospective member may unreasonably be excluded from standing for election;
(g) all active or prospective members on the date of the election are entitled to vote for member representatives;
(h) the members entitled to vote may vote for as many candidates as there are representatives to be elected to represent them or, if there are to be classes of representative for particular descriptions of member, may vote for as many candidates as there are representatives to be elected to represent their particular description of member;
(i) the election is conducted so as to secure that-
(i) so far as is reasonably practicable, those voting do so in secret, and
(ii) the votes given at the election are accurately counted.
2. Where, after an election of representatives satisfying the requirements of paragraph (1) has been held-
(a) one of those elected ceases to act as a representative, and
(b) the active or prospective members (or any description of them) are no longer represented, those members must elect another representative by an election satisfying the requirements of paragraph (1)(a), (e), (f), and (i)
3. The relevant employer must from time to time review the number of representatives determined under paragraph (1)(b) and the number of representatives elected must be adjusted accordingly (whether by members electing one or more other representatives by an election satisfying the requirements of paragraph (1)(a), (e), (f) and (i), by not holding an election under paragraph (2) or otherwise).
You must ensure that:
- candidates for the election are prospective or active members of the scheme on the date of the election
- the number of pension representatives is proportionate to the number of affected prospective and active pension scheme members employed by you, eg one representative per 50 affected or prospective members
Note that if some of the affected members are not represented by a representative, you must consult with those members individually.
Rights of pension representatives
Pension representatives have certain rights, which - if you breach them - could lead to an industrial tribunal claim against you.
See employment-protection rights for employee representatives.
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Representation for workforce agreements
Negotiating with employees on working hours, parental leave, and the use of successive fixed-term contracts.
The law allows for you to negotiate workforce agreements on certain matters.
A workforce agreement is an agreement between an employer and its employees whose terms and conditions of employment are not covered by a collective agreement. A collective agreement is made between the employer and an independent trade union recognised by that employer.
Workforce agreements on working hours
The Working Time Regulations (Northern Ireland) 2016 set maximum working hours, minimum rest breaks and minimum paid annual leave.
You can agree by voluntary agreement with your workforce to vary certain aspects of the regulations, such as rights to rest periods and breaks.
The 48-hour week working-time limit cannot be varied by workforce agreement though individuals can choose to agree to work beyond the 48-hour limit. This agreement is generally referred to as an opt-out and must be in writing and signed by each individual worker affected.
Read more on hours, rest breaks and the working week.
Workforce agreements on parental leave schemes
Employees with young or disabled children are entitled to take unpaid time off to look after those children.
The law sets out certain minimum conditions for parental leave, but you can agree - via a workforce agreement - your own parental leave scheme with your employees.
Read more on agreeing a workplace parental leave scheme.
Workforce agreements on the use of successive fixed-term contracts
If a fixed-term employee has their contract renewed (or is re-engaged on a new fixed-term contract) when they already have a period of four or more years of continuous employment, the renewal or new contract automatically becomes a permanent contract.
However, employers and representatives of employees may agree - via a workforce agreement - objective reasons for fixed-term contracts renewed beyond four years to remain fixed term.
Any agreement may also limit the use of successive fixed-term contracts by applying one or more of the following:
- a limit on the number of successive fixed-term contracts
- a limit on the total duration of successive fixed-term contracts
- a list of permissible objective reasons justifying renewals of fixed-term contracts
For example, representatives of employees in an industry where it is traditional for employees to work on fixed-term contracts may agree with the employer that the nature of the work is an objective reason for continuing to renew fixed-term contracts beyond the four-year limit.
Read more on understanding fixed-term employment contracts.
Electing representatives for workforce agreements
If there are no pre-existing representatives in place, you must arrange to elect employee representatives to negotiate the workforce agreement with you.
To do this, you should:
- decide on the number of representatives to be elected
- ensure candidates are members of the workforce on the date of the election or, in the case of a group, a member of the group to whom the agreement is to apply
- allow each employee a vote for each representative to be elected to represent them
- ensure as far as is reasonably practicable that they are elected by secret ballot
- ensure that the votes are counted fairly and accurately
Rights of representatives for workforce agreements
Such employee representatives have certain rights, which - if you breach them - could lead to an industrial tribunal claim against you. See employment-protection rights for employee representatives.
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Ongoing information and consultation arrangements
Representatives for negotiating and running national and transnational information and consultation arrangements.
Depending on the size and geographical scope of your business, you may have to set up an ongoing information and consultation (I&C) arrangement with your employees.
Ongoing I&C on a national level - the Information and Consultation of Employees (ICE) Regulations (Northern Ireland) 2005
As long as they make a valid request, employees of organisations with 50 or more employees have the right to negotiate an I&C agreement with their employer.
If you receive a valid employee request, you must make arrangements for employees to elect or appoint negotiating representatives. They will negotiate with you to reach an I&C agreement.
As part of the I&C agreement, you may decide to inform and consult your employees through I&C representatives. I&C representatives do not necessarily have to be the same individuals as the negotiating representatives.
If you do want I&C representatives, you should agree with the negotiating representatives:
- how many I&C representatives there will be
- who they will represent
- how they may be replaced
- how long they will serve for
- how they will be appointed or elected
- whether anyone other than an employee may be an I&C representative
Read more on how to inform and consult your employees.
Ongoing I&C on a transnational level - European works councils
European works councils (EWCs) are a particular type of works council used by larger companies with sites in more than one European Union (EU) member state, to inform and consult their employees about transnational issues.
Read more on European Works Councils.
Rights of employee representatives
Employee representatives elected or appointed under the ICE Regulations, or as Special Negotiating Body (SNB) or EWC representatives, have certain rights, which - if you breach them - could lead to an industrial tribunal claim against you. See employment-protection rights for employee representatives.
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Ongoing consultation on health and safety matters
Representatives of employee safety and their employment rights.
If you recognise an independent trade union for collective bargaining purposes, it is entitled to appoint union safety representatives at the workplace.
Read Health and Safety Executive for Northern Ireland (HSENI) guidance on trade union representation relating to safety matters.
However, if you have employees who are not represented by trade union safety representatives, you must consult the employees directly and in good time about health and safety issues.
Alternatively, you must consult any employee representatives - called representatives of employee safety (RoES) - who are elected for this purpose.
Download the HSE guide to consulting employees on health and safety (PDF, 137K).
Employment-protection rights for RoES
A RoES has the right:
- not to be subject to a detriment or to be dismissed because of their activities (or proposed activities) as a RoES - any dismissal in these circumstances is automatically unfair
- to a reasonable amount of paid time off during working hours to perform their functions or undergo any training - this right also applies to a candidate standing for election as a RoES
- to receive the necessary training as is reasonable under the circumstances - you must pay any reasonable costs for such training, including travel and subsistence costs
You must also provide a RoES with the facilities and assistance they may reasonably require for carrying out their duties.
What facilities and assistance are appropriate will vary according to the circumstances. Communication systems vary from workplace to workplace, and it might be appropriate for you to provide the representative with workspace, access to telephone, the internet, email, etc in order to carry out their duties.
Tribunal claims for a RoES if their rights are infringed
A RoES (or candidate in an election to become such a representative) who is dismissed or subjected to a detriment as a result of their activities may lodge a complaint with the Industrial Tribunal.
If the tribunal/arbitrator finds that you:
- dismissed the employee unfairly, an order of reinstatement or re-engagement may be made or alternatively, an award of compensation
- subjected the employee to a detriment, an order to award compensation may be made
A RoES (or candidate in an election to become such a representative) may also lodge a complaint with the Industrial Tribunal if you infringed their right to reasonable paid time off.
If the tribunal/arbitrator finds that you:
- unreasonably refused a RoES or candidate paid time off, a declaration to that effect will be made and the individual will be awarded an amount equal to the pay they would have been entitled to if you hadn't refused them that time off
- failed to pay a RoES or candidate the appropriate amount for paid time off, an order to pay the amount due shall be made
A tribunal/arbitrator will not normally consider any such claim unless it is made within three months of the date when the alleged infringement occurred.
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Employment-protection rights for employee representatives
What employee representatives are entitled to do and have, and what may happen if you deny them these entitlements.
Certain employment-protection rights apply to employee representatives who have been elected for the purposes of information and consultation:
- during a collective redundancy or business transfer situation - see employee representatives during collective redundancy situations and employee representatives during business transfers
- as representatives of employee safety - see ongoing consultation on health and safety matters
- on proposed changes to occupational and personal pension schemes operated by the employer - see pension representatives
- under the Information and Consultation of Employees Regulations (Northern Ireland) 2005 - see ongoing information and consultation arrangements
- as part of a European works council or special negotiating body - see the page in this guide on ongoing information and consultation arrangements
Employment protection rights
These rights are as follows:
- The right to reasonable paid time off to carry out their duties. The law does not specify the amount of time off that it is reasonable to allow since this will vary according to the circumstances. You should pay the representative at the appropriate hourly rate for the period of absence from work. You can calculate this by dividing the amount of a week's pay by the number of normal working hours in the week.
- The right not to be subject to a detriment or to be dismissed because of their activities (or proposed activities) as an employee representative - any dismissal in these circumstances is automatically unfair.
In addition, representatives of employee safety and those employee representatives dealing with collective redundancies and business transfers have rights to time off to be trained in their duties. They are also entitled to access office equipment and other workplace facilities to assist them in undertaking their roles.
Employee representatives elected for the purposes of negotiating a workforce agreement have the right not to be subjected to a detriment or be dismissed because of their activities or proposed activities - see representation for workforce agreements.
Such representatives do not have the statutory right to paid time off to carry out their duties. However, it's good practice to give them this right anyway.
Note that these employment-protection rights also apply - as appropriate - to those who are candidates in an election to become an employee representative.
Offering discretionary rights to employee representatives
You should consider allowing employee representatives access to office equipment or other workplace facilities to carry out their work effectively.
What is appropriate will vary according to the circumstances. Communication systems vary from workplace to workplace, and it might be appropriate for you to provide the representative with workspace, access to telephone, the internet, email, etc in order to carry out their duties.
You should also consider giving employee representatives paid time off to be trained in their representative roles.
Other representatives - eg those who are consulted voluntarily by employers - have no statutory rights, though it may be in your interest to allow such representatives access to facilities and the time off to perform their duties.
Read Labour Relations Agency (LRA) guidance on non-union representation in the workplace.
Tribunal claims for employee representatives if their rights are infringed
Employee representatives - or candidates in an election to become a representative - who are dismissed or subjected to a detriment as a result of their activities may lodge a complaint with the Industrial Tribunal.
A tribunal/arbitrator will not normally consider such a claim unless it is made within three months of the date when the alleged infringement occurred.
If the tribunal/arbitrator finds that you:
- dismissed the employee unfairly, an order of reinstatement or re-engagement may be made, or alternatively, an award of compensation
- unreasonably refused a representative or candidate paid time off, a declaration to that effect will be made and the individual will be awarded an amount equal to the pay to which they would have been entitled to if you had not refused the time off
- failed to pay a representative or candidate the appropriate amount for paid time off, an order to pay the amount due shall be made
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Working effectively with employee representatives
Working with employee representatives to improve business performance and avoid disputes.
One of the main benefits of working with employee representatives is that it can create a sense of trust between management and employees. If you can do this, it will improve business performance and can help prevent disputes.
The arrangements you use will depend on the size of your business and the type of consultation. However, it's important to aim for a balanced relationship and make roles clear. For example:
- Set out your expectations of the representatives' day-to-day role, identifying which issues are within the scope of consultation.
- Works/staff councils should have a constitution including their terms of reference and procedure for electing representatives. You should commit time and resources to enable it to operate, such as meeting or training facilities.
It's also important to meet your legal obligations and enable individual representatives to do their job well. Read more on employment-protection rights for employee representatives.
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Representation for workforce agreements
In this guide:
- Working with non-union representatives
- Employee representatives
- Employee representatives during collective redundancy situations
- Employee representatives during business transfers
- Pension representatives
- Representation for workforce agreements
- Ongoing information and consultation arrangements
- Ongoing consultation on health and safety matters
- Employment-protection rights for employee representatives
- Working effectively with employee representatives
Employee representatives
Understand the role of employee representatives and situations when you may need to consult them on issues affecting your workforce.
What is an employee representative?
Employee representatives may be chosen by their fellow employees or appointed by management. The roles of employee representatives vary but most:
- receive information from and give information to management
- pass on information more widely within the workforce
- are consulted by management over certain workplace matters
Employee representatives operate mainly in businesses that:
- do not recognise a trade union for collective bargaining purposes
- recognise a trade union in respect of some, but not all, of their employees
Why consult employee representatives?
Most of the legal duties to consult employee representatives arise in one-off situations such as large-scale redundancies or business transfers. Therefore, if you do not recognise a trade union, you may not have employee representatives in place at times when those one-off events are not occurring.
However, some businesses have employee representatives in place on a permanent and ongoing basis so that they:
- will not have to arrange for employee representatives to be elected when a legal duty arises
- can inform and consult their workforce about business performance or workplace issues
- can build trust through better workforce communications
- can improve staff engagement and productivity, which in turn can help prevent disputes
When to consult employee representatives
You must consult employee representatives:
- in collective redundancy situations - see employee representatives during collective redundancy situations
- where the employer proposes to dismiss and re-engage 20 or more employees as a result of contract variation
- when employees are transferred from one employer to another - see employee representatives during business transfers
- on certain changes to occupational and personal pension schemes - see pension representatives
In these situations, if you don't already have employee representatives, you will have to arrange for them to be elected - although you don't need to 'force' employees to elect them.
You may also need to consult employee representatives on workforce agreements concerning:
- maternity and parental leave schemes
- the use of successive fixed-term contracts
- working time, eg for daily and weekly rest periods, and rest breaks during the working day
See representation for workforce agreements.
Ongoing consultation with employee representatives
You may have to set up an ongoing information and consultation arrangement with elected employee representatives. This might be not only on a national level but also across the European Union.
However, you only have to do this if the relevant employees make a valid request for such an arrangement.
Read more on ongoing information and consultation arrangements.
Note that you also have a duty to carry out ongoing consultation with employees or their representatives on health and safety matters - see ongoing consultation on health and safety matters.
Voluntary ongoing consultation with employee representatives
If you don't have to inform and consult, you can still come to a voluntary agreement with employee representatives on ways in which they can:
- make employees' views known to management
- help strengthen both management's and employees' understanding of workplace issues and other matters affecting the business
- help create an atmosphere of mutual trust between employees and management and therefore improve workplace relations
Examples of voluntary arrangements with employee representatives include:
- individual informal discussions or formal group meetings
- works councils, eg joint consultative committees and joint working parties where representatives of employers consult employee representatives for their views before making decisions - this could be through regular discussion of matters of mutual concern or by meeting to consider and resolve specific business issues
Representation of individual employees
In non-unionised settings, a worker may want to choose an employee representative to act as their companion because that person may be more familiar with the tasks associated with the role of spokesperson.
Alternatively, they may choose a companion who is either a full-time official employed by a union or a lay union official who has been reasonably certified in writing by their union as having experience of or as having received training in, acting as a worker's companion at disciplinary or grievance hearings. The union official can be from any trade union, regardless of whether that union is recognised by you.
Read more on disciplinary procedures, hearings, and appeals, and handling grievances.
Read the Labour Relations Agency's (LRA's) Code of Practice on Disciplinary and Grievance Procedures.
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Employee representatives during collective redundancy situations
Consulting employee representatives when you are planning to make 20 or more employees redundant.
If a collective redundancy situation arises, you have a legal duty to consult elected employee representatives where:
- you don't recognise an independent trade union
- you recognise an independent trade union (or more than one trade union) to bargain on behalf of a group of employees but some of the employees you plan to make redundant don't belong to that group
You must also consult union representatives where you recognise an independent trade union and where at least one of the employees you plan to make redundant is part of the bargaining group for which the union is recognised.
What is a collective redundancy situation?
A collective redundancy situation is where you plan to make 20 or more employees redundant at one establishment within a 90-day period.
For more information on redundancies in general, see redundancy: the options.
Which employee representatives you should consult with
It is your responsibility to ensure that consultation is offered to appropriate employee representatives.
In some cases, you may need to arrange elections to select employees to carry out this task.
However, if you already work with employee representatives in other capacities - eg where you regularly consult employee representatives in works councils, committees, etc - you may be able to use some or all of them for this purpose and avoid elections.
Where you arrange elections, but no employee wishes to stand, you will have to consult all the affected employees individually.
If there are existing representatives, their remit and method of election or appointment must give them suitable authority from the affected employees. For example, where redundancies are to take place among sales staff, you could not inform and consult a committee of managers set up to consider the operation of a staff canteen.
However, it would be appropriate for you to inform and consult:
- representatives already elected or appointed under the Information and Consultation of Employees Regulations (Northern Ireland) 2005 - see ongoing information and consultation arrangements
- a pre-existing committee of employees, such as a works council or staff forum, that you regularly engage with more generally about the business's financial position and/or personnel matters
Arranging the election of employee representatives
If the employee representatives are to be elected specifically for the redundancy consultation, certain election conditions must be met.
When arranging to elect employee representatives, you must:
- make such arrangements as are reasonably practical to ensure that the election is fair
- determine the number of representatives to be elected so that there are enough representatives to represent the interests of all the affected employees, taking into account the number and classes of those employees
- determine whether the affected employees should be represented either by representatives of all the affected employees or by representatives of particular classes of those employees
- before the election, determine the employee representatives' term of office so that it is long enough to enable relevant information to be given and consultations to be completed
- ensure that the candidates for election as employee representatives are affected employees on the date of the election
- ensure that no affected employee is unreasonably excluded from standing for election
- ensure that all affected employees on the date of the election are entitled to vote for employee representatives
- ensure that the employees entitled to vote may vote for as many candidates as there are representatives to be elected to represent them or, if there are to be representatives for particular classes of employees, for as many candidates as there are representatives to be elected to represent their particular class of employee
- hold the election in a way to ensure that, so far as is reasonably practicable, those voting do so in secret, and the votes given at the election are accurately counted
If an elected employee representative ceases to act as one and, as a result, certain employees are no longer represented, you must hold another election satisfying the rules set out at 1, 5, 6, and 9 above.
The law does not state how many representatives you must elect or the exact process for choosing them. However, you need to consider whether:
- the employees have enough time to nominate and consider candidates
- the employees - including any employees absent from work for whatever reason - can freely choose who to vote for
- the arrangements adequately cover all the classes of employees who may be affected by the redundancy situation and provide a reasonable balance between the interests of the different groups
- you have any normal custom and practice in your business for arranging and holding such elections and, if so, whether you have a good reason to depart from it, if you think you need to
Where you give affected employees a genuine opportunity to elect representatives, but the employees fail to do so, you must provide relevant information to all affected employees individually.
Rights of employee representatives
Employee representatives in redundancy situations have certain rights, which - if you breach them - could lead to an industrial tribunal claim against you.
See employment-protection rights for employee representatives.
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Employee representatives during business transfers
Consulting employee representatives when employees are transferring from one employer to another.
If you are involved in a business transfer or service provision change - either because you are transferring employees to another employer or because you are receiving employees from another employer - you are responsible for informing and consulting the employees concerned.
You must consult elected employee representatives during such a transfer if:
- you don't recognise an independent trade union
- you recognise an independent trade union (or more than one trade union) to bargain on behalf of a group of employees but some of the employees affected by the transfer don't belong to that group
You must also consult union representatives where an independent trade union is recognised and where at least one employee affected by the transfer belongs to the bargaining group for which the union is recognised.
For more information on business transfers in general, see responsibilities to employees if you buy or sell a business.
Which employee representatives you should consult with
It is your responsibility to ensure that consultation is offered to appropriate employee representatives.
In some cases, you may need to arrange elections to select employees to carry out this task. However, if you already work with employee representatives in other capacities - eg where you regularly consult employee representatives in works councils, committees, etc - you may be able to use some or all of them for this purpose and avoid elections.
Where you arrange elections, but no employee wishes to stand, you will have to consult all the affected employees individually.
For more information on business transfers and the obligation to inform and consult when employees are being transferred to a new employer, see responsibilities to employees if you buy or sell a business.
If there are existing representatives, their remit and method of election or appointment must give them suitable authority from the affected employees. For example, if the affected employees are all located at one site, it would clearly not be enough to inform and consult representatives based solely at another site - even if they are part of the same business.
However, it would be appropriate for you to inform and consult:
- representatives already elected or appointed under the Information and Consultation of Employees Regulations (Northern Ireland) 2005 - see ongoing information and consultation arrangements
- a pre-existing committee of employees, such as a works council or staff forum, that you regularly inform or consult with more generally about the business's financial position and/or personnel matters
Arranging the election of employee representatives
If the employee representatives are to be specially elected, certain election conditions must be met.
When arranging to elect employee representatives, you must:
- make such arrangements as are reasonably practical to ensure that the election is fair
- determine the number of representatives to be elected so that there are enough representatives to represent the interests of all the affected employees, taking into account the number and classes of those employees
- determine whether the affected employees should be represented either by representatives of all the affected employees or by representatives of particular classes of those employees
- before the election, determine the employee representatives' term of office so that it is long enough to enable relevant information to be given and consultations to be completed
- ensure that the candidates for election as employee representatives are affected employees on the date of the election
- ensure that no affected employee is unreasonably excluded from standing for election
- ensure that all affected employees on the date of the election are entitled to vote for employee representatives
- ensure that the employees entitled to vote may vote for as many candidates as there are representatives to be elected to represent them or, if there are to be representatives for particular classes of employees, for as many candidates as there are representatives to be elected to represent their particular class of employee
- hold the election in a way to ensure that, so far as is reasonably practicable, those voting do so in secret, and the votes given at the election are accurately counted
If an elected employee representative ceases to act as one and, as a result, certain employees are no longer represented, you must hold another election satisfying the rules set out at 1, 5, 6, and 9 above.
The law does not state how many representatives you must elect or the exact process for choosing them. However, you need to consider whether:
- the employees have enough time to nominate and consider candidates
- the employees - including any employees absent from work for whatever reason - can freely choose who to vote for
- the arrangements adequately cover all the classes of employees who may be affected by the transfer and provide a reasonable balance between the interests of the different groups
- you have any normal custom and practice for arranging and holding such elections and, if so, whether you have a good reason to depart from it, if you think you need to
Where you give affected employees a genuine opportunity to elect representatives, but the employees fail to do so, you must provide relevant information to all affected employees individually.
Right of employee representatives
Employee representatives in transfer situations have certain rights, which - if you breach them - could lead to an industrial tribunal claim against you. See employment-protection rights for employee representatives.
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Pension representatives
Consulting employee representatives on pension matters.
If you operate an occupational pension scheme (OPS) or make direct payments to a personal pension scheme (PPS), you may have to consult employees and/or their representatives if you wish to change certain scheme conditions or arrangements.
Consulting representatives on changes to an OPS or PPS
You have a legal duty to consult with representatives if certain changes are proposed to any OPS you offer to your staff.
Such changes might be:
- an increase in the normal pension age
- closure of the OPS to some or all new members
- increasing member contributions in some or all cases
- stopping future accruals in the OPS to some or all members
If you make direct payments to a PPS, you must consult representatives where you propose to:
- stop making contributions for some or all members
- reduce your contribution for some or all members
- require some or all members to increase their contributions
You must consult with the representatives of as many affected members as is reasonably practicable.
Subject to that requirement, you could choose to work with one or more of the following:
- previously elected pensions representatives
- representatives of a recognised independent trade union - read more on recognising and derecognising a trade union
- representatives already elected or appointed under the Information and Consultation of Employees Regulations (Northern Ireland) 2005 - see ongoing information and consultation arrangements
- a pre-existing committee of employees, such as a works council or staff forum, that you regularly inform or consult with more generally about business and/or personnel issues
You could also choose to consult directly with employees if provision is made for this in the terms of a pre-existing committee of employees or an agreement you negotiate with any of the types of representative listed.
If you don't already have any such representatives in place, you should arrange for them to be elected.
Election of representatives
The legislation sets out a number of other requirements for election eg
- The requirements of this paragraph are that-
(a) the employer must make such arrangements as are reasonably practicable to ensure that the election is fair;
(b) the employer must determine the number of representatives to be elected so that there are sufficient representatives to represent the interests of active members and the interests of prospective members;
(c) the employer must determine whether the active and prospective members should be represented by representatives of all such members or by representatives of particular descriptions of such members;
(d) before the election, the employer must determine the term of office as representative of active and prospective members;
(e) the candidates for election must be active or prospective members of the scheme on the date of the election;
(f) no active or prospective member may unreasonably be excluded from standing for election;
(g) all active or prospective members on the date of the election are entitled to vote for member representatives;
(h) the members entitled to vote may vote for as many candidates as there are representatives to be elected to represent them or, if there are to be classes of representative for particular descriptions of member, may vote for as many candidates as there are representatives to be elected to represent their particular description of member;
(i) the election is conducted so as to secure that-
(i) so far as is reasonably practicable, those voting do so in secret, and
(ii) the votes given at the election are accurately counted.
2. Where, after an election of representatives satisfying the requirements of paragraph (1) has been held-
(a) one of those elected ceases to act as a representative, and
(b) the active or prospective members (or any description of them) are no longer represented, those members must elect another representative by an election satisfying the requirements of paragraph (1)(a), (e), (f), and (i)
3. The relevant employer must from time to time review the number of representatives determined under paragraph (1)(b) and the number of representatives elected must be adjusted accordingly (whether by members electing one or more other representatives by an election satisfying the requirements of paragraph (1)(a), (e), (f) and (i), by not holding an election under paragraph (2) or otherwise).
You must ensure that:
- candidates for the election are prospective or active members of the scheme on the date of the election
- the number of pension representatives is proportionate to the number of affected prospective and active pension scheme members employed by you, eg one representative per 50 affected or prospective members
Note that if some of the affected members are not represented by a representative, you must consult with those members individually.
Rights of pension representatives
Pension representatives have certain rights, which - if you breach them - could lead to an industrial tribunal claim against you.
See employment-protection rights for employee representatives.
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Representation for workforce agreements
Negotiating with employees on working hours, parental leave, and the use of successive fixed-term contracts.
The law allows for you to negotiate workforce agreements on certain matters.
A workforce agreement is an agreement between an employer and its employees whose terms and conditions of employment are not covered by a collective agreement. A collective agreement is made between the employer and an independent trade union recognised by that employer.
Workforce agreements on working hours
The Working Time Regulations (Northern Ireland) 2016 set maximum working hours, minimum rest breaks and minimum paid annual leave.
You can agree by voluntary agreement with your workforce to vary certain aspects of the regulations, such as rights to rest periods and breaks.
The 48-hour week working-time limit cannot be varied by workforce agreement though individuals can choose to agree to work beyond the 48-hour limit. This agreement is generally referred to as an opt-out and must be in writing and signed by each individual worker affected.
Read more on hours, rest breaks and the working week.
Workforce agreements on parental leave schemes
Employees with young or disabled children are entitled to take unpaid time off to look after those children.
The law sets out certain minimum conditions for parental leave, but you can agree - via a workforce agreement - your own parental leave scheme with your employees.
Read more on agreeing a workplace parental leave scheme.
Workforce agreements on the use of successive fixed-term contracts
If a fixed-term employee has their contract renewed (or is re-engaged on a new fixed-term contract) when they already have a period of four or more years of continuous employment, the renewal or new contract automatically becomes a permanent contract.
However, employers and representatives of employees may agree - via a workforce agreement - objective reasons for fixed-term contracts renewed beyond four years to remain fixed term.
Any agreement may also limit the use of successive fixed-term contracts by applying one or more of the following:
- a limit on the number of successive fixed-term contracts
- a limit on the total duration of successive fixed-term contracts
- a list of permissible objective reasons justifying renewals of fixed-term contracts
For example, representatives of employees in an industry where it is traditional for employees to work on fixed-term contracts may agree with the employer that the nature of the work is an objective reason for continuing to renew fixed-term contracts beyond the four-year limit.
Read more on understanding fixed-term employment contracts.
Electing representatives for workforce agreements
If there are no pre-existing representatives in place, you must arrange to elect employee representatives to negotiate the workforce agreement with you.
To do this, you should:
- decide on the number of representatives to be elected
- ensure candidates are members of the workforce on the date of the election or, in the case of a group, a member of the group to whom the agreement is to apply
- allow each employee a vote for each representative to be elected to represent them
- ensure as far as is reasonably practicable that they are elected by secret ballot
- ensure that the votes are counted fairly and accurately
Rights of representatives for workforce agreements
Such employee representatives have certain rights, which - if you breach them - could lead to an industrial tribunal claim against you. See employment-protection rights for employee representatives.
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Ongoing information and consultation arrangements
Representatives for negotiating and running national and transnational information and consultation arrangements.
Depending on the size and geographical scope of your business, you may have to set up an ongoing information and consultation (I&C) arrangement with your employees.
Ongoing I&C on a national level - the Information and Consultation of Employees (ICE) Regulations (Northern Ireland) 2005
As long as they make a valid request, employees of organisations with 50 or more employees have the right to negotiate an I&C agreement with their employer.
If you receive a valid employee request, you must make arrangements for employees to elect or appoint negotiating representatives. They will negotiate with you to reach an I&C agreement.
As part of the I&C agreement, you may decide to inform and consult your employees through I&C representatives. I&C representatives do not necessarily have to be the same individuals as the negotiating representatives.
If you do want I&C representatives, you should agree with the negotiating representatives:
- how many I&C representatives there will be
- who they will represent
- how they may be replaced
- how long they will serve for
- how they will be appointed or elected
- whether anyone other than an employee may be an I&C representative
Read more on how to inform and consult your employees.
Ongoing I&C on a transnational level - European works councils
European works councils (EWCs) are a particular type of works council used by larger companies with sites in more than one European Union (EU) member state, to inform and consult their employees about transnational issues.
Read more on European Works Councils.
Rights of employee representatives
Employee representatives elected or appointed under the ICE Regulations, or as Special Negotiating Body (SNB) or EWC representatives, have certain rights, which - if you breach them - could lead to an industrial tribunal claim against you. See employment-protection rights for employee representatives.
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Ongoing consultation on health and safety matters
Representatives of employee safety and their employment rights.
If you recognise an independent trade union for collective bargaining purposes, it is entitled to appoint union safety representatives at the workplace.
Read Health and Safety Executive for Northern Ireland (HSENI) guidance on trade union representation relating to safety matters.
However, if you have employees who are not represented by trade union safety representatives, you must consult the employees directly and in good time about health and safety issues.
Alternatively, you must consult any employee representatives - called representatives of employee safety (RoES) - who are elected for this purpose.
Download the HSE guide to consulting employees on health and safety (PDF, 137K).
Employment-protection rights for RoES
A RoES has the right:
- not to be subject to a detriment or to be dismissed because of their activities (or proposed activities) as a RoES - any dismissal in these circumstances is automatically unfair
- to a reasonable amount of paid time off during working hours to perform their functions or undergo any training - this right also applies to a candidate standing for election as a RoES
- to receive the necessary training as is reasonable under the circumstances - you must pay any reasonable costs for such training, including travel and subsistence costs
You must also provide a RoES with the facilities and assistance they may reasonably require for carrying out their duties.
What facilities and assistance are appropriate will vary according to the circumstances. Communication systems vary from workplace to workplace, and it might be appropriate for you to provide the representative with workspace, access to telephone, the internet, email, etc in order to carry out their duties.
Tribunal claims for a RoES if their rights are infringed
A RoES (or candidate in an election to become such a representative) who is dismissed or subjected to a detriment as a result of their activities may lodge a complaint with the Industrial Tribunal.
If the tribunal/arbitrator finds that you:
- dismissed the employee unfairly, an order of reinstatement or re-engagement may be made or alternatively, an award of compensation
- subjected the employee to a detriment, an order to award compensation may be made
A RoES (or candidate in an election to become such a representative) may also lodge a complaint with the Industrial Tribunal if you infringed their right to reasonable paid time off.
If the tribunal/arbitrator finds that you:
- unreasonably refused a RoES or candidate paid time off, a declaration to that effect will be made and the individual will be awarded an amount equal to the pay they would have been entitled to if you hadn't refused them that time off
- failed to pay a RoES or candidate the appropriate amount for paid time off, an order to pay the amount due shall be made
A tribunal/arbitrator will not normally consider any such claim unless it is made within three months of the date when the alleged infringement occurred.
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Employment-protection rights for employee representatives
What employee representatives are entitled to do and have, and what may happen if you deny them these entitlements.
Certain employment-protection rights apply to employee representatives who have been elected for the purposes of information and consultation:
- during a collective redundancy or business transfer situation - see employee representatives during collective redundancy situations and employee representatives during business transfers
- as representatives of employee safety - see ongoing consultation on health and safety matters
- on proposed changes to occupational and personal pension schemes operated by the employer - see pension representatives
- under the Information and Consultation of Employees Regulations (Northern Ireland) 2005 - see ongoing information and consultation arrangements
- as part of a European works council or special negotiating body - see the page in this guide on ongoing information and consultation arrangements
Employment protection rights
These rights are as follows:
- The right to reasonable paid time off to carry out their duties. The law does not specify the amount of time off that it is reasonable to allow since this will vary according to the circumstances. You should pay the representative at the appropriate hourly rate for the period of absence from work. You can calculate this by dividing the amount of a week's pay by the number of normal working hours in the week.
- The right not to be subject to a detriment or to be dismissed because of their activities (or proposed activities) as an employee representative - any dismissal in these circumstances is automatically unfair.
In addition, representatives of employee safety and those employee representatives dealing with collective redundancies and business transfers have rights to time off to be trained in their duties. They are also entitled to access office equipment and other workplace facilities to assist them in undertaking their roles.
Employee representatives elected for the purposes of negotiating a workforce agreement have the right not to be subjected to a detriment or be dismissed because of their activities or proposed activities - see representation for workforce agreements.
Such representatives do not have the statutory right to paid time off to carry out their duties. However, it's good practice to give them this right anyway.
Note that these employment-protection rights also apply - as appropriate - to those who are candidates in an election to become an employee representative.
Offering discretionary rights to employee representatives
You should consider allowing employee representatives access to office equipment or other workplace facilities to carry out their work effectively.
What is appropriate will vary according to the circumstances. Communication systems vary from workplace to workplace, and it might be appropriate for you to provide the representative with workspace, access to telephone, the internet, email, etc in order to carry out their duties.
You should also consider giving employee representatives paid time off to be trained in their representative roles.
Other representatives - eg those who are consulted voluntarily by employers - have no statutory rights, though it may be in your interest to allow such representatives access to facilities and the time off to perform their duties.
Read Labour Relations Agency (LRA) guidance on non-union representation in the workplace.
Tribunal claims for employee representatives if their rights are infringed
Employee representatives - or candidates in an election to become a representative - who are dismissed or subjected to a detriment as a result of their activities may lodge a complaint with the Industrial Tribunal.
A tribunal/arbitrator will not normally consider such a claim unless it is made within three months of the date when the alleged infringement occurred.
If the tribunal/arbitrator finds that you:
- dismissed the employee unfairly, an order of reinstatement or re-engagement may be made, or alternatively, an award of compensation
- unreasonably refused a representative or candidate paid time off, a declaration to that effect will be made and the individual will be awarded an amount equal to the pay to which they would have been entitled to if you had not refused the time off
- failed to pay a representative or candidate the appropriate amount for paid time off, an order to pay the amount due shall be made
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Working effectively with employee representatives
Working with employee representatives to improve business performance and avoid disputes.
One of the main benefits of working with employee representatives is that it can create a sense of trust between management and employees. If you can do this, it will improve business performance and can help prevent disputes.
The arrangements you use will depend on the size of your business and the type of consultation. However, it's important to aim for a balanced relationship and make roles clear. For example:
- Set out your expectations of the representatives' day-to-day role, identifying which issues are within the scope of consultation.
- Works/staff councils should have a constitution including their terms of reference and procedure for electing representatives. You should commit time and resources to enable it to operate, such as meeting or training facilities.
It's also important to meet your legal obligations and enable individual representatives to do their job well. Read more on employment-protection rights for employee representatives.
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Adoption pay
In this guide:
- Adoption leave and pay
- Qualifying for adoption leave
- UK adoptions: notification and confirmation of adoption leave
- Overseas adoptions: notification and confirmation of adoption leave
- Surrogacy: notification and confirmation of adoption leave
- Adoption leave: when it can begin
- Adoption leave: terms and conditions during leave
- Adoption leave: annual leave and occupational pensions
- Reasonable contact and work during adoption leave
- Employee notification of change of planned return date from adoption leave
- Returning to work from adoption leave
- Adoption leave and protection against detriment or dismissal
- Adoption pay
Qualifying for adoption leave
Who qualifies for Statutory Adoption Leave and how employers may offer enhanced leave rights.
To qualify for Statutory Adoption Leave, an employee must meet certain qualifying criteria. The criteria differ for UK and overseas adoptions and for intended parents of surrogacy arrangements.
Note there are additional notification and eligibility requirements for Statutory Adoption Pay.
Definition of an adopter
An 'adopter' is defined as 'a person who has been matched with a child for adoption'. An employee is 'matched with a child for adoption when an adoption agency decides that the employee would be a suitable adoptive parent for the child, either individually or jointly with another person'. Where two people have been matched jointly, the 'adopter' is 'whichever of them has elected to be the child's adopter for the purposes of the regulations. The employee becomes the child's adopter when he or she agrees with the other person, at the time at which they are matched with the child, that he or she will be the adopter.
An adopter may therefore be an individual who adopts or one member of a couple where the couple adopts jointly. This means that where a couple adopts jointly only one member of that couple can claim adoption leave. However, the other member of the couple, or the partner (this includes same-sex partners) of an individual who adopts, may be entitled to paternity leave and pay. The fact that adoption leave is only available to those who have been matched with a child through an agency means that, for example, stepfathers and stepmothers who wish to adopt their stepchildren are not eligible for adoption leave.
The definition of 'adopter' is modified slightly for overseas adoptions, to refer to 'a person by whom a child has been or is to be adopted' (as opposed to a person who has been matched with a child for adoption).
UK adoptions
An employee qualifies for 52 weeks' Statutory Adoption Leave when they adopt a child in the UK if they:
- Have been matched with a child to be placed with them by a UK adoption agency. (This may, exceptionally, include cases where an adoption agency places a child with approved foster parents who are also approved, prospective adopters. The adoption agency will supply the foster parents with correspondence which can be shown to the employer explaining that they have met the relevant criteria for being matched with the child for the purposes of adoption leave and pay and other entitlements open to adopters. The usual notification and service criteria will apply).
- Have notified the adoption agency that they agree that the child should be placed with them and agree with the date of placement.
- Notify you of when they want to take their Statutory Adoption Leave no more than seven days after they are notified that they've been matched with a child - see UK adoptions: notification and confirmation of adoption leave.
It does not matter how long the employee has worked for you.
The Statutory Adoption Leave period is made up of 26 weeks of ordinary adoption leave followed immediately by 26 weeks of additional adoption leave.
In addition, since the introduction of shared parental leave and pay on 5 April 2015, adopters can bring their adoption leave and pay to an early end to opt into shared parental leave and pay with their partner.
Adopters are also entitled to time off to attend pre-adoptions appointments - see statutory time off work for parental reasons.
Overseas adoptions
An employee qualifies for 52 weeks' Statutory Adoption Leave when they adopt a child from overseas if they:
- Have received official notification from the relevant UK authority of their eligibility to adopt a child from abroad.
- Have given you the correct notification - see overseas adoptions: notification and confirmation of adoption leave.
- Are the child's adopter. This is the person who will adopt or has adopted the child or, in a case where the child will be or has been adopted by two people jointly, whichever of the joint adopters has chosen to take statutory adoption leave in respect of the child.
Official notification for overseas adoptions
Official notification is written notification issued by or on behalf of the relevant domestic authority stating that the authority either is prepared to issue a certificate to the overseas authority dealing with the adoption of the child or has issued a certificate and sent it to that authority.
In either case, the certificate confirms that the adopter has been approved by them as being a suitable adoptive parent to adopt a child from overseas.
An employee needs to have 26 weeks of continuous employment at the date of the official notification.
Joint and individual adoptions
Where a couple is adopting jointly, they can choose who will take Statutory Adoption Leave and who (regardless of gender) will take Statutory Paternity Leave. They cannot both take Statutory Adoption Leave or Statutory Paternity Leave.
If an employee is adopting individually, only they are eligible for Statutory Adoption Leave - although their partner (regardless of gender) may be eligible for Statutory Paternity Leave.
Foster parents who adopt a child
A foster parent may be able to take Statutory Adoption Leave if they go on to adopt a child, but only if:
- The child that the employee fostered is then matched with them for adoption by a UK adoption agency. Adoption via a court order does not count.
- The child is then actually placed with them for adoption.
- The foster parents have not previously availed of adoption leave in respect of the same child in the circumstances described under the heading 'UK Adoptions' above.
The usual notification criteria still apply. The adoption leave only relates to the actual placement for adoption - any period of ordinary foster care does not count.
Special guardianships
A special guardian is usually someone with a close relationship with the child, such as a family member, former foster carer, or family friend. They need to apply to a court which will consider their suitability and the child's needs, based on a report from the local authority.
Statutory Adoption Leave is not available to special guardians.
Surrogacy and adoption leave and pay
An employee who becomes a parent through an arrangement with a surrogate mother is now also entitled to Statutory Adoption Leave and Statutory Adoption Pay.
The intended parents in a surrogacy arrangement (also known as Parental Order) may be eligible for adoption leave and pay where they intend to apply for or have already obtained, a Parental Order making them the legal parents of the child. Where a couple applies for a Parental Order only one of the couple will be able to take adoption leave and/or pay in relation to the child.
Eligibility criteria for adoption leave and pay
The eligibility criteria for adoption leave and pay are:
- they are an employee
- they have obtained a Parental Order for the child or have, on the day of the child's birth, applied for or intend to apply for such an Order
- the application for the Parental Order must be made within six months of the child's birth and the intended parents must expect the Parental Order to be made
They will also be entitled to the right to request a flexible working arrangement from their employer. See the right to request flexible working: eligibility criteria.
In a couple, the intended parent who does not take adoption leave and pay may be eligible for paternity leave and pay. Intended parents may also qualify for shared parental leave and pay where the parent who qualifies for adoption leave and pay chooses to return to work before the end of the adoption leave period.
Intended parents may also be entitled to unpaid time off to attend ante-natal appointments with the surrogate mother - see statutory time off work for parental reasons.
If they don't qualify for these, they could take annual leave or an agreed period of unpaid leave.
Enhanced adoption leave
Employers can make enhanced adoption leave arrangements to attract and retain employees, which are more generous than the statutory entitlements.
For example, you could allow employees with more than a year's service to take more than 52 weeks' leave.
You can offer these arrangements either as a contractual right or on a discretionary, case-by-case basis. When exercising discretion, caution should be taken to avoid claims of unfair treatment or discrimination.
See the Invest Northern Ireland Employers' handbook guidance on adoption leave and pay (PDF, 48K).
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UK adoptions: notification and confirmation of adoption leave
Employee and employer obligations regarding adoption leave notification.
To qualify for Statutory Adoption Leave, an employee should notify you no more than seven days after they are notified of having been matched with a child:
- that they intend to take Statutory Adoption Leave
- when they intend to start it
- the date the child is expected to be placed with them for adoption
They can tell you earlier than this if they choose.
If it is not reasonably practicable for them to meet this deadline, they should notify you as soon as possible.
If the employee has not given you the correct notice, you can delay the start of their Statutory Adoption Leave (and pay) until they give the correct notice. However, you cannot postpone the start of leave beyond the date of placement.
You may request this notification in writing.
Many employees will find it convenient to give notice of the date for the start of Statutory Adoption Pay at the same time. The date for the start of Statutory Adoption Pay can be the same as the start date for Statutory Adoption Leave. See adoption pay.
An employee can change the start date of their leave - see when adoption leave can begin.
Evidence of adoption
Employees do not have to prove that they are eligible for Statutory Adoption Leave unless you ask them to. However, they do need to provide evidence to prove eligibility for Statutory Adoption Pay - see adoption pay.
If you choose to ask an employee to prove their eligibility for Statutory Adoption Leave, they must give you the documentation they were given by the adoption agency, which must contain the following:
- the name and address of the agency
- the date on which the employee was notified that he or she had been matched with the child
- the date on which the agency expects to place the child with the employee
Encouraging early notification
If the employee notifies you as early as possible of their intention to take Statutory Adoption Leave, you can start making arrangements to cover the period while they are away.
Giving the employee confirmation of the end date of their Statutory Adoption Leave
After receiving their notification, you must in turn notify the employee of the date on which their Statutory Adoption Leave will end. This will normally be 52 weeks from the intended start of their Statutory Adoption Leave. This will inform the employee of when he or she has to return to work. Download our model adoption leave acknowledgement letter (DOC, 136K).
You must give the employee this information within 28 days of their notification unless the employee has since changed the date their leave will start. In that case, you must notify them of the end date within 28 days of the start of their leave.
If you fail to give the employee proper notification and the employee subsequently doesn't return to work on time, you cannot discipline them.
In addition, if they want to change their return dates, they may not be obliged to comply with the notice requirements.
Note that an employee may choose to take less than 52 weeks of Statutory Adoption Leave by notifying you of this:
- at the same time as they notify you that they intend to take leave - in which case you would confirm this date in your acknowledgment letter
- before or during the leave itself - as long as they give the correct notice - see employee notification of change of planned return date from adoption leave
See the Invest Northern Ireland Employers' Handbook guidance on adoption leave and pay (PDF, 48K).
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Overseas adoptions: notification and confirmation of adoption leave
Employees adopting a child from overseas must give you notice in three stages that they intend to take Statutory Adoption Leave.
Employees adopting a child from overseas must give employers notice in three stages that they intend to take Statutory Adoption Leave.
Employees must give you the information required in writing if you request it.
If they are also entitled to Statutory Adoption Pay, they must give you the evidence required at the same time - see adoption pay.
First notification stage for overseas adoptions
The employee must inform you of the date:
- on which they received official notification
- the child is expected to enter Northern Ireland
For an explanation of the official notification, see qualifying for adoption leave.
They must give you this information within 28 days of receiving official notification. At this point, the employee should know roughly when the child will enter Northern Ireland.
Second notification stage for overseas adoptions
In all cases, the employee must give you at least 28 days' notice of the actual date they want their Statutory Adoption Leave (and Statutory Adoption Pay if they qualify) to start. They can give this notice at the first notification stage if they know the date. Statutory Adoption Leave cannot start before the child enters Northern Ireland.
Employees can change their mind about the date on which they want their leave to start providing they tell you at least 28 days in advance of the new date, or as soon as is reasonably practicable.
Third notification stage (after the child has entered Northern Ireland for adoption)
Employees must tell you the date the child entered Northern Ireland. They must tell you this within 28 days of the child's date of entry. If the adopter is also claiming Statutory Adoption Pay, they will need to give evidence of the date of entry.
Employees must tell you as soon as is reasonably practicable if they find out that the child will not be entering Northern Ireland.
Confirmation of Statutory Adoption Leave
You must respond to the employee's notification of the date they wish their Statutory Adoption Leave to start (the second notification stage) within 28 days, confirming the date their Statutory Adoption Leave will end. This will inform the employee of when he or she has to return to work. Download our model adoption leave acknowledgement letter (DOC, 136K).
See the Invest Northern Ireland Employers' handbook guidance on adoption leave and pay (PDF, 48K).
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Surrogacy: notification and confirmation of adoption leave
Notification and confirmation of adoption leave in relation to surrogacy cases.
With surrogacy cases the employee must:
- Give their employer the correct notice. Notice of entitlement to adoption leave must be given by the 15th week before the expected week of birth (and must be in writing, if requested).
- If requested by the employer, provide a statutory declaration that they have obtained or have applied for, or intend to apply for within six months of the birth, a Parental Order in respect of the child they are having with the help of a surrogate and that they expect the court to make the Parental Order.
- Provide the employer with the actual date of birth as soon as reasonably practicable after the birth.
Confirmation of Statutory Adoption Leave
You must respond to the employee's notification of the date they wish their Statutory Adoption Leave to start within 28 days, confirming the date their Statutory Adoption Leave will end. This will inform the employee of when he or she has to return to work. Download our model adoption leave surrogacy acknowledgement letter (DOC, 136K).
See the Invest Northern Ireland Employers' Handbook guidance on adoption leave and pay (PDF, 48K).
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Adoption leave: when it can begin
Beginning statutory adoption leave and changing the start date if the adoption doesn't take place as planned.
When an employee can choose to start their Statutory Adoption Leave depends on whether they are adopting a child from within the UK or from overseas, or are an intended parent of a surrogacy arrangement.
UK adoptions: when adoption leave can begin
An employee can choose to begin their Statutory Adoption Leave (and Statutory Adoption Pay) on either of the following:
- the date on which the child is placed with them for adoption
- a pre-determined date no earlier than 14 days before the expected date of placement and no later than the expected date of placement
If they have chosen to start their leave on the day the child is placed with them and they are at work on that day, the period of Statutory Adoption Leave and Statutory Adoption Pay can start on the next day. The leave can start on any day of the week.
If the date of placement changes before the employee begins their Statutory Adoption Leave, they should:
- discuss the situation with you as soon as possible
- give the appropriate notice to change the start date - however, you can accept less notice
If you are unable to agree on the dates of Statutory Adoption Leave, contact the Labour Relations Agency (LRA) Workplace Information Service on Tel 03300 555 300.
Overseas adoptions: when adoption leave can begin
Employees may choose to start their Statutory Adoption Leave from either the date the child enters Northern Ireland or a fixed date (as notified to you) no later than 28 days after the date the child enters Northern Ireland.
If they have chosen to start their leave on the day the child is placed with them and they are at work on the day, the period of Statutory Adoption Leave and Statutory Adoption Pay can start on the next day. The adoption leave can start on any day of the week.
Statutory Adoption Leave cannot be used to cover the period employees spend travelling overseas to arrange the adoption or visit the child. However, you could allow the employee to take annual leave or unpaid leave for these purposes.
Surrogacy cases: when adoption leave can begin
Adoption leave will commence on the day the child is born, but if the employee is at work on that day, then leave will commence on the next day.
Statutory Adoption Leave: changing the start date
This does not apply to surrogacy cases.
The employee can change their intended Statutory Adoption Leave start date as long as they notify you of the new start date. They must do this by whichever is the earlier of:
- 28 days before their original Statutory Adoption Leave start date.
- 28 days before their new Statutory Adoption Leave start date.
If it is not reasonably practicable for them to give you this much notice, they should give you as much notice as possible.
You may request this notification in writing.
See the Invest Northern Ireland Employers' Handbook guidance on adoption leave and pay (PDF, 48K).
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Adoption leave: terms and conditions during leave
Certain terms and conditions continue to apply during statutory adoption leave.
Adoption leave is made up of 26 weeks' Ordinary Adoption Leave followed by 26 weeks' Additional Adoption Leave. An employee's employment contract continues throughout both Ordinary Adoption Leave and Additional Adoption Leave unless either you or the employee expressly ends it or it expires.
During both Ordinary Adoption Leave and Additional Adoption Leave, ie the entire Statutory Adoption Leave period, an employee has a statutory right to continue to benefit from all the terms and conditions of employment which would have applied to them had they been at work. The only exceptions are terms relating to wages or salary - though you are still obliged to pay them statutory adoption pay if they are eligible. See adoption pay.
Adoption leave: continuous contractual terms and conditions
Examples of contractual terms and conditions that continue during Statutory Adoption Leave include:
- gym membership
- participation in share schemes
- reimbursement of professional subscriptions
- the use of a company car or mobile phone (unless provided for business use only)
Whether or not you should pay a bonus to an employee on Statutory Adoption Leave depends on the type of bonus and the terms of the particular bonus scheme.
Adoption leave: continuous employment and length of service
Statutory Adoption Leave doesn't break the continuity of employment.
Similarly, the entire Statutory Adoption Leave period counts towards an employee's period of continuous employment for the purposes of entitlement to other statutory employment rights, eg the right to a redundancy payment.
Both Ordinary Adoption Leave and Additional Adoption Leave count for assessing seniority and personal length-of-service payments, such as pay increments, under the contracts of employment of employees who have had a child placed with them for adoption on or after 5 October 2008, or who have a child adopted from overseas that entered (or will enter) Northern Ireland on or after 5 October 2008.
However, for employees who had a child placed with them before 5 October 2008, you only had to count the period of Ordinary Adoption Leave for assessing the length of service payments.
Therefore, when assessing the length of service for a pay raise for example, it's possible that an employee who has adopted twice or more while in your employment could have a later period of Additional Adoption Leave count towards their length of service but not an earlier one.
See the Invest Northern Ireland Employers' Handbook guidance on adoption leave and pay (PDF, 48K).
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Adoption leave: annual leave and occupational pensions
An employee's contractual benefits continue during ordinary and additional adoption leave.
During Statutory Adoption Leave, an employee continues to accrue annual leave. They may also continue to benefit from occupational pension scheme contributions.
Accrual of annual leave
An employee continues to accrue their full statutory paid annual leave entitlement of 5.6 weeks and any additional contractual entitlement throughout both Ordinary Adoption Leave and Additional Adoption Leave.
Employees will be able to carry over 5.6 weeks leave into the next holiday year if they are unable to take the leave due to having taken adoption leave.
An employee may not take annual leave during Statutory Adoption Leave. You should instead allow the employee to take any untaken annual leave before and/or after their Statutory Adoption Leave.
Note that you cannot pay an employee in lieu of any untaken statutory annual leave unless the contract is terminated.
Also, note that an employee's Statutory Adoption Leave begins automatically if the child is unexpectedly placed with them for adoption during a period of annual leave - see when adoption leave can begin.
For more information on annual leave entitlements, see know how much holiday to give your staff.
Contributions to an occupational pension scheme
During Ordinary Adoption Leave (whether or not the employee is receiving statutory and/or enhanced adoption pay) and any period of paid Additional Adoption Leave, you should calculate the employer's contribution to an occupational pension scheme contributions as if the employee is working normally and receiving the normal remuneration for doing so.
During any period that your employee is on Additional Adoption Leave but not receiving any adoption pay - eg during the last 13 weeks of Additional Adoption Leave - you do not have to make any employer contributions to an occupational pension scheme unless the contract of employment provides otherwise.
If the occupational pension scheme rules require employee contributions to continue during Statutory Adoption Leave, their contributions should be based on the amount of statutory and/or enhanced adoption pay they are receiving.
Employee contributions will therefore stop during any period of unpaid adoption leave - eg during the last 13 weeks of Additional Adoption Leave - but the occupational pension scheme rules may allow them to still make voluntary contributions.
See the Invest Northern Ireland Employers' Handbook guidance on adoption leave and pay (PDF, 48K).
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Reasonable contact and work during adoption leave
Making reasonable contact with an employee during Statutory Adoption Leave.
During the Statutory Adoption Leave period, as an employer, you can make reasonable contact with an employee during their leave period - and they can choose to make contact with you.
In addition, an employee can come to work as a way of keeping in touch with workplace developments.
Adoption leave: contact with employees
Employers can make reasonable contact with the employee on adoption leave by any means, eg telephone, email, letter, or a meeting in the workplace.
The frequency and nature of any contact with them will depend on things like:
- the nature of the work and the employee's post
- any agreement that you might have reached with the employee before their adoption leave began
- whether either party needs to communicate important information to the other, eg changes in the workplace that might affect the employee on their return
What amount of contact is reasonable depends on the employee and whether they prefer to have frequent or minimal contact with you and the workplace issues to be discussed. You should discuss this with your employee before the Statutory Adoption Leave period begins, as part of your planning for the employee's Statutory Adoption Leave.
Remember that you must keep an employee informed of promotion opportunities and other information relating to their job that they would normally be made aware of if they were at work, eg redundancy situations.
Adoption leave: keeping-in-touch days
Employees may, in agreement with you, work for up to ten days - known as keeping-in-touch days - under their employment contract during their adoption leave period without it affecting their right to Statutory Adoption Leave or Statutory Adoption Pay.
During keeping-in-touch days, employees can actually carry out work for you. This could be their normal day-to-day work or could, for example, be attending a conference, undertaking training, or attending a team meeting.
Any amount of work done on a keeping-in-touch day counts as one keeping-in-touch day. Therefore, if an employee comes in for a one-hour training session and does no other work that day, they will have used up one of their keeping-in-touch days.
If work on a keeping-in-touch 'day' spans midnight, this counts as one keeping-in-touch day - as long as this is the employee's normal working pattern.
Payment for keeping-in-touch days
You and the employee should agree on how much you will pay them for a keeping-in-touch day - this could be set out in their employment contract or you may decide on a discretionary, case-by-case basis. When exercising discretion, caution should be taken to avoid claims of unfair treatment or discrimination.
If the employee is receiving Statutory Adoption Pay when they work a keeping-in-touch day, you must continue to pay their Statutory Adoption Pay for that week.
If the employee does more than ten days' work for you in their Statutory Adoption Pay period, they are not entitled to Statutory Adoption Pay for any week in which they work if they have already worked ten keeping-in-touch days. You do not have to pay them Statutory Adoption Pay for any week in which they have worked both the last of their keeping-in-touch days and any additional days.
The Statutory Adoption Pay the employee receives for the week in which they work a keeping-in-touch day can count towards any contractual pay you agree with them for working that keeping-in-touch day. However, you could agree that they will receive their normal daily rate in addition to the Statutory Adoption Pay for that week.
Whatever the arrangement, you can still continue to recover Statutory Adoption Pay from HM Revenue & Customs as normal - see adoption pay.
You will need to comply with your statutory obligations, such as paying at least the national minimum wage and ensuring women and men receive equal pay for work of equal value. See National Minimum Wage and National Living Wage - rates and overview.
Keeping-in-touch days: protection against detriment or dismissal
An employee can only work a keeping-in-touch day if they want to and you agree to it - you cannot make an employee work a keeping-in-touch day against their wishes, nor can the employee insist they work a keeping-in-touch day if you don't agree to it.
It is unlawful for you to treat an employee unfairly or dismiss them because they:
- refused to work a keeping-in-touch day
- worked - or considered working - a keeping-in-touch day
If an employee believes that you have treated them unfairly or dismissed them under these circumstances, they may do either of the following:
- resign and claim constructive dismissal - the employee may raise a grievance about this with you first
- raise a grievance with you, which may result in an industrial tribunal claim for detrimental treatment and/or unfair dismissal if you fail to address it - see handling grievances
See the Invest Northern Ireland Employers' Handbook guidance on adoption leave and pay (PDF, 48K).
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Employee notification of change of planned return date from adoption leave
Notification from employees regarding changes to their return date or if they don't intend to return to work at all.
Unless the employee has notified you otherwise, the date on which they return to work will normally be the first working day 52 weeks after their Statutory Adoption Leave began.
Adoption leave: returning to work before the planned return date
If an employee wishes to return to work before the planned return date (usually the date you confirmed to them before they went on leave), they must give you notice at least eight weeks before their new return date - although you can accept less or no notice .
For example, if an employee was due to return to work after 52 weeks Statutory Adoption Leave on 1 August, but then decided to return to work after 39 weeks of leave on 9 May, they would need to give you eight weeks' notice of the new date, ie by 14 March.
Note that if you didn't provide appropriate notification of when their adoption leave should end, the employee does not have to give you eight weeks' notice - see UK adoptions: notification and confirmation of adoption leave.
If the employee attempts to return to work earlier than planned without giving you notice, you can postpone their return until after the eight weeks have elapsed.
However, you may not postpone their return to a date later than the end of their 52-week Statutory Adoption Leave period.
If the employee still comes to work during the period of postponement, you do not have to pay them.
Adoption leave: returning to work after the planned return date
If an employee wishes to return to work after the planned return date, they should give you notice of this new date of return at least eight weeks before the originally planned return date.
For example, if an employee was due to return to work at the end of their Ordinary Adoption Leave (ie after 26 weeks) on 1 October but - while on leave - decides that they wish to take their full entitlement of 52 weeks, they must notify you of this eight weeks before 1 October, ie by 6 August.
Employees who do not wish to return to work after adoption leave
An employee who does not wish to return to work after their Statutory Adoption Leave must give you notice of this. This will be the usual notice of resignation as required by their employment contract.
However, as long as they specify the date on which they wish to terminate the contract (eg the date they were due back at work after Statutory Adoption Leave), their adoption leave continues.
In addition, if they terminate their contract before the end of their Statutory Adoption Pay period, you must continue to pay them Statutory Adoption Pay, provided they have not started work for another employer.
Employees who don't return to work are not required to pay back any statutory adoption pay they have received. See adoption pay.
See the Invest Northern Ireland Employers' Handbook guidance on adoption leave and pay (PDF, 48K).
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Returning to work from adoption leave
Whether or not an employee has the automatic right to return to the same job.
An employee is entitled to return to the same job that they had before going on Statutory Adoption Leave if they take only Ordinary Adoption Leave, ie the initial 26-week period of leave. The rules are different where an employee takes all or some of their Additional Adoption Leave, ie the second 26-week period of leave.
Return to work after Ordinary Adoption Leave
An employee who returns to work during, or at the end of, their Ordinary Adoption Leave is entitled to return to the same job on the same terms and conditions of employment as if they had not been absent unless a redundancy situation has arisen.
If you prevent an employee from returning to work, they may make a complaint of unfair dismissal to an industrial tribunal.
If they return to work but you don't give them their old job back, they may do either of the following:
- raise a grievance with you, which may result in an industrial tribunal claim for detrimental treatment if you fail to address it
- resign and claim constructive dismissal - the employee may raise a grievance about this with you first - see handling grievances
See adoption leave and protection against detriment or dismissal.
Return to work after Additional Adoption Leave
An employee who returns to work during or at the end of their Additional Adoption Leave period is entitled to return to the same job on the same terms and conditions of employment as if they had not been absent.
However, if it is not reasonably practicable for you to let them return to their old job, you should offer them a job:
- that is both suitable and appropriate for them
- on terms and conditions that are no less favourable than those for their original job
If you offer the employee a job that fulfils the criteria above and they unreasonably refuse it, they will have effectively resigned.
If you offer the employee a job that doesn't fulfil the criteria, they may do either of the following:
- resign and claim constructive dismissal - the employee may raise a grievance about this with you first
- raise a grievance with you, which may result in an industrial tribunal claim for detrimental treatment if you fail to address it
You should try to consult with employees during their Statutory Adoption Leave about any proposed changes to their job in preparation for their return. See the page in this guide on reasonable contact and work during adoption leave.
Return to work where parental leave is taken immediately after Statutory Adoption Leave
Employees who qualify for parental leave may take some of this leave immediately following the end of their Statutory Adoption Leave.
An employee is entitled to return to the same job as before if the parental leave meets both of the following conditions:
- it is for four weeks or less
- it isn't preceded by any Additional Adoption Leave
If the parental leave period is longer than four weeks and/or is preceded by a period of Additional Adoption Leave, the employee is treated as though they were returning to work after Additional Adoption Leave.
See parental leave and time off for dependants.
Pay rises during Statutory Adoption Leave
An employee on Statutory Adoption Leave is entitled to benefit from any general improvements to the rate of pay, or other terms and conditions, which are introduced for their grade or class of work - as if they hadn't been away.
Flexible working requests
Providing they meet the qualifying criteria, an employee returning to work may make a request to work flexibly, eg to adjust their start or finish times, work from home, or do part-time hours. Read more on flexible working: the law and best practice.
See the Invest Northern Ireland Employers' Handbook guidance on adoption leave and pay (PDF, 48K).
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Adoption leave and protection against detriment or dismissal
You must not unfairly treat or dismiss employees because they are taking, took, or seeking to take Statutory Adoption Leave.
Employees are protected from suffering a detriment or dismissal for taking or seeking to take, Statutory Adoption Leave.
Statutory Adoption Leave and detrimental treatment
You must not subject an employee to any detriment by acting, or deliberately failing to act, because they:
- sought to take Statutory Adoption Leave
- availed of Statutory Adoption Leave
Examples of detrimental treatment include denial of promotion, facilities, or training opportunities that you would normally have made available to the employee.
If an employee believes you have treated them unfairly under these circumstances, they may:
- resign and claim constructive dismissal - the employee may raise a grievance about this with you first
- raise a grievance with you, which may result in an industrial tribunal claim for detrimental treatment if you fail to address it - see handling grievances
Redundancy during Statutory Adoption Leave
If a redundancy situation arises at any stage during an employee's adoption leave, you may not be able to continue to employ them under their existing contract of employment.
In these circumstances, an employee has the right to be offered (before that contract ends) any suitable alternative vacancy, where one is available. This includes a vacancy with an associated employer or with a successor to the original employer.
The new job must start immediately after the end of the original one and must both:
- be suitable and appropriate for them to do in the circumstances
- have terms and conditions that are not substantially less favourable to them than if they had continued to be employed under the original employment contract
If you fail to comply with these requirements and dismiss the employee, the dismissal will be automatically unfair if the reason or principal reason for the dismissal is redundancy.
If you end up making an employee on adoption leave redundant because you had no suitable alternative work to offer them, the dismissal may be potentially fair.
Note that, on dismissal, the employee's adoption leave period comes to an end, but their entitlement to Statutory Adoption Pay continues until the end of the 39-week Statutory Adoption Pay period (if it hasn't already ended) or they start working for another employer, whichever is earlier.
Dismissal on or after return to work from adoption leave
The dismissal of an employee will automatically be an unfair dismissal if you dismiss them - or select them for redundancy in preference to other comparable employees - solely or mainly because they:
- have taken adoption leave
- have benefited from the terms and conditions of employment to which they were entitled to during that leave
- failed to return from their adoption leave on time because you failed to give them any or adequate notification of the end date of their leave - see UK adoptions: notification and confirmation of adoption leave
However, a dismissal may be potentially fair if, on the employee's return from additional adoption leave, you:
- could not offer them their old job back
- you - or an associated employer - offered them suitable alternative employment which they unreasonably refused - see fair dismissal
See returning to work from adoption leave.
Dismissal on grounds unrelated to adoption leave
It is still possible for you to fairly dismiss an employee who is on - or who has recently returned from - adoption leave if the reason for the dismissal is not:
- largely or wholly unrelated to their adoption leave
- for any other reason that is unfair or discriminatory
You must comply with the correct statutory procedure when dismissing employees.
Dismissal of replacement employees
You can fairly dismiss an employee you took on to replace an employee on adoption leave. However, make sure you inform them that their position is only for adoption cover before they start and that the arrangement with you will end when the individual returns from leave. You should also comply with the statutory dismissal procedure when ending the employment.
See the Invest Northern Ireland Employers' Handbook guidance on adoption leave and pay (PDF, 48K).
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Adoption pay
Who qualifies for Statutory Adoption Pay, and how employers may recover payments and offer enhanced adoption pay.
Statutory Adoption Pay is paid for 39 weeks and usually covers the first 39 weeks of an employee's adoption leave.
There are different eligibility criteria for Statutory Adoption Pay for UK and overseas adoptions. See adoption pay and leave: eligibility.
Adoption pay and foster parents
In Northern Ireland, in exceptional cases, adoption pay may be payable where an adoption agency places a child with approved foster parents who are also approved, prospective adopters. The adoption agency will supply the foster parents with correspondence which can be shown to the employer explaining that they have met the relevant criteria for being matched with the child for the purposes of adoption leave and pay, and other entitlements open to adopters. The usual notification and service criteria will apply.
Statutory Adoption Pay rates and recovery
For the first six weeks, you must pay your employee Statutory Adoption Pay a weekly rate equal to 90% of their average weekly earnings.
For the next 33 weeks, you must pay them the lower of the following:
- the standard weekly rate - £187.18
- 90% of their average weekly earnings
You can recover some or all of your Statutory Adoption Pay payments from HM Revenue & Customs (HMRC) - the proportion you can recover depends on the size of your annual National Insurance Contributions liability.
Enhanced adoption pay
If you wish, you can offer enhanced adoption pay arrangements to attract and retain employees which are more generous than the statutory entitlements. For example, you could:
- pay more than Statutory Adoption Pay over a certain period, eg full pay for the first six weeks, half pay for the next ten weeks, Statutory Adoption Pay for the remaining 23 weeks
- make a bonus payment on the employee's return to work
You could change the qualification criteria for these adoption pay enhancements, eg the employee needs a year's continuous service.
You can offer these enhanced adoption pay arrangements either as a contractual right or on a discretionary, case-by-case basis. When exercising discretion caution should be taken to avoid claims of unfair treatment or discrimination.
You can still recover from HMRC the Statutory Adoption Pay portion of any enhanced adoption pay.
See the Invest Northern Ireland Employers' Handbook guidance on adoption leave and pay (PDF, 48K).
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Advantages of pre-employment checks
In this guide:
- Pre-employment checks
- Advantages of pre-employment checks
- Pre-employment checks: identity checks
- Pre-employment checks: checking references
- Pre-employment checks: checking qualifications
- Pre-employment checks: health checks
- Pre-employment checks: applying for a criminal records check
- Pre-employment checks: ensuring candidates are eligible to work in the UK
- Withdrawing job offers where checks are not satisfactory
- Pre-employment checks: data protection issues
Advantages of pre-employment checks
Making pre-employment checks to comply with the law.
Pre-employment checks are an important part of the recruitment process.
They help you to:
- comply with the law by ensuring the employee has permission to work - and remain - in the UK and has not been barred from carrying out the job - eg for roles working with vulnerable groups or holding the position of director
- check that the potential employee is suitably qualified or skilled for the job
- assess whether the potential employee is suitable for the job - eg for roles working with vulnerable groups or security roles
- check that the employee is able to carry out the job - though you must ensure you do not discriminate in breach of the Disability Discrimination Act 1995
Types of checks
There are a range of checks you can carry out, some of which are compulsory and others which may be desirable. These include:
- identity checks - see pre-employment checks: identity checks
- AccessNI disclosures - see pre-employment checks: applying for a criminal records check
- evidence of the right to work and remain in the UK - pre-employment checks: ensuring candidates are eligible to work in the UK
- references - see pre-employment checks: checking references
- qualifications - see pre-employment checks: checking qualifications
- health - see pre-employment checks: health checks
You must ensure your checks are not discriminatory (for example, a health check that discriminates against disabled people and is not necessary for the job) and do not discourage people from applying for the job. For more guidance, see how to prevent discrimination and value diversity.
You can make any job offer conditional on the outcome of pre-employment checks.
A conditional job offer does not become a binding employment contract until both parties have agreed to it and can be withdrawn if the conditions are not met. See withdrawing job offers where checks are not satisfactory.
You should carry out your checks as quickly as possible once a conditional offer has been made.
Protective security guidance
The National Protective Security Authority (NPSA) provides protective security advice. This is for companies and organisations that deliver the UK's essential services.
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Pre-employment checks: identity checks
Why you should check a candidate's identity and how you can go about it.
The first check you should carry out is to confirm the identity of the candidate and establish that their identity is genuine.
You should not undertake any other checks until you are satisfied that the candidate is who they claim to be.
How to check a person's identity
You can check a person's identity by:
- requesting original copies of documents - such as passports, birth certificates, and driving licences
- asking for copies of documents that confirm the person lives where they claim they do, eg, provide a recent bank statement or utility bill with their name and address on it
- requesting a Certificate of Registration, or a Biometric Residence Permit, and/or immigration documents where relevant
- using a commercial online database checking service
Whilst these checks can prove that an identity exists, they cannot prove that the identity rightfully belongs to the person using it. You should back up any electronic check by obtaining original documents to support the claim.
Job offer templates from Acas including a pre-employment checklist template.
The HM Passport Office has introduced a number of measures to help employers check for identity fraud.
Read more on the HM Passport Office's responsibilities and priorities.
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Pre-employment checks: checking references
How and when you should check references.
Although not compulsory, it is advisable to check a potential employee's references.
You can do this in writing or by telephone at any point during the recruitment process. Some candidates will prefer you not to check their references until they have been offered the job, and you should seek their consent before any referees are contacted.
There is no automatic right to receive a reference from a previous or current employer, except for roles in organisations covered by the Financial Conduct Authority and the Prudential Regulation Authority. The easiest way to obtain references is in writing.
References should give facts such as start and end dates, job title, salary, and sickness absences (excluding any absence related to a disability or parental leave).
You may wish to follow up on the information disclosed by having an informal conversation with the author of the reference, or the previous employer. Asking specific questions can disclose additional information, for example, details on the employee's performance, integrity, relevant personal information, and reasons for leaving. However, caution should be taken as to how any additional information is interpreted. After an informal conversation, good practice suggests:
- Any information provided should not be used as a substitute for you making your own judgement about employment.
- The information should be weighed against all evidence received during the recruitment process, making a balanced decision that takes into account all available information.
- Consideration as to the context and circumstances of the information provided should be carried out, as circumstances can change. It may be appropriate to involve the potential employee in this consideration.
Are references confidential?
Generally, employees do not have the right to ask their employer to see a job reference that the employer has written about them, which has been given in confidence. However, they may be able to gain access to it from the person the reference is sent to, so you should not assume a reference will stay confidential.
Individuals may also be able to access notes made about them during a telephone reference as well as any notes you make during and after their interview.
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Pre-employment checks: checking qualifications
How and when you should check qualifications as part of your pre-employment checks.
As well as looking at references, you should also check the candidate's qualifications, especially when the qualification is essential to the position you want to fill. In some professions, candidates must be in possession of specific qualifications before they can practice.
You can check qualifications by asking to see the candidate's certificates. Alternatively, you can check with the awarding bodies or use one of the checking services.
The Council for Curriculum Examinations & Assessment (CCEA) has details of the qualifications it accredits. Information is also available about the competence and performance levels they are based on. Read CCEA guidance on post-16 qualifications.
UK ENIC is the UK national agency for international qualifications and skills and can help you compare overseas qualifications with UK equivalents. Compare overseas academic qualifications (registration required).
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Pre-employment checks: health checks
Anti-discrimination and data protection considerations when asking candidates to complete a health check.
You may wish to include health checks as part of your recruitment process. A health questionnaire may ask about individual and family history and lifestyle. They can highlight potential problems requiring a follow-up, eg, by a medical examination.
Questions about disability and health during the recruitment process
You should take great care when asking about a job candidate's disability or health concerns. You should ensure that you seek this information for the right reasons and not in order to discriminate against disabled people.
The Equality Commission suggests giving job candidates the opportunity on an application form, or on a monitoring form, to indicate any relevant effects of a disability and to suggest any reasonable adjustments which may help them overcome any disadvantage in their potential workplace.
You have an obligation, under the Disability Discrimination Act, to make reasonable adjustments for disabled employees or applicants at all stages of the recruitment, selection and employment process.
Read Equality Commission guidance on hiring new staff.
Asking a question about disability is not in itself discriminatory. However, your conduct following the candidate's response could lead an industrial tribunal to conclude that you have carried out a discriminatory act.
When to carry out pre-employment health checks
You should only complete pre-employment health checks:
- once you have offered the job to a particular person
- where any candidate - disabled or not - would be required to undergo testing to decide if they are fit to carry out the job
- where testing is needed to meet any legal requirement, eg, eye tests for commercial vehicle drivers
- when you are sure you need this information and have policies in place to securely hold the information as required by the Data Protection Act, regardless of whether it is in paper or electronic form
The level of assessment will depend on the nature of the job and can range from simply checking the levels of absence in a previous job to a full health assessment.
If you are making a job offer conditional upon the candidate's fitness for the work, this should be stated clearly in the offer letter.
You must ensure you are not carrying out discriminatory practices in asking potential employees to pass a health check. Health checks - if required - should be carried out on all candidates to avoid unfairly discriminating against disabled candidates. For further guidance, see how to prevent discrimination and value diversity.
You may be required to pay a fee for a medical report from a candidate's GP. The candidate must give you their written consent before you request a medical report.
Candidates have the right to see the report and can request that it be amended or withheld from you. Even without the candidate seeing the report, the doctor must keep it for 21 days before sending it to the employer.
Alternatively, an employer may refer a prospective employee to occupational health. The employer must seek the candidate's consent before referral, and the employer should pay for the referral.
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Pre-employment checks: applying for a criminal records check
How and when to request an AccessNI check, the application process, and how to use the information provided.
You can apply for a criminal records check for the potential applicant from AccessNI. This is usually required when people are working regularly with children or vulnerable adults or, for example, as part of the taxi driver licensing regime in Northern Ireland. The Security Industry Authority also carries out a criminal record check on anyone who applies for a security licence.
It is important to ensure that a position is eligible for an AccessNI check before starting the process. Eligibility is governed by the Rehabilitation of Offenders (Exceptions) Order (Northern Ireland) 1979 (as amended). You should contact AccessNI if you are unsure whether a position is eligible for a check.
Criminal records checks should not be requested until a job offer is made, but you should make it clear, in writing, that the job offer is conditional upon a criminal records check.
There are three types of criminal records check - basic, standard and enhanced. Legislative provisions may require that either a Standard or Enhanced Disclosure is requested for someone commencing employment in certain sectors. The type of check you will need to make will depend on the work that is to be undertaken.
The Disclosure and Barring Service (DBS) helps employers in Northern Ireland make safer recruitment decisions. The main criminal record checks are now called a DBS check. A DBS check is only necessary for certain types of jobs involving vulnerable groups, eg working with children, in healthcare, prisons and courts. The DBS was established in 2012 and carries out the functions previously undertaken by the Criminal Records Bureau and the Independent Safeguarding Authority. It is accessible through AccessNI.
For more information on each type of check, see AccessNI criminal records checks.
Avoiding discrimination
Once you have received your copy of the AccessNI disclosure certificate, you can assess whether the candidate is suitable for the job. An AccessNI disclosure will reveal previous convictions. Generally, under the terms of the Rehabilitation of Offenders (Northern Ireland) Order 1978, someone convicted of a criminal offence who does not receive any further convictions during 'the rehabilitation period' becomes a rehabilitated person. Their conviction is regarded as spent - therefore, after a certain period of time, you should treat the person as if the conviction had not happened.
However, a conviction resulting in a prison sentence of more than two and a half years can never be spent.
A person must disclose all convictions - including spent ones - if the job offered falls into an exempted category according to the Rehabilitation of Offenders (Northern Ireland) 1978, including:
- regular contact with children and vulnerable adults
- accountancy
- work as a barrister
- police work
- posts relating to the administration of justice or financial regulation
- posts involving national security
Whether the conviction is spent or unspent, you should carefully weigh a number of factors, including:
- how long ago the offence was committed
- the candidate's age at the time
- the relevance of the offence to the job offered
- the penalty awarded
- whether the offence was isolated or part of a pattern of offending
- what is known about the person's behaviour before and since
People should not be unfairly discriminated against due to past convictions. You should also give the candidate a chance to explain if a check reveals adverse information about them.
For details of your legal obligations when applying for AccessNI checks and using the sensitive personal information on a certificate see employing someone with a criminal record.
Read employers' guidance on recruiting people with Northern Ireland conflict-related convictions.
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Pre-employment checks: ensuring candidates are eligible to work in the UK
Preventing illegal working - the checks you must make, who is eligible for work and who needs permission.
Employers need a sponsor licence to hire most workers from outside the UK. See right to work checks: employing EU, EEA and Swiss citizens.
All employers in the UK have a responsibility to stop illegal workers. You must therefore check the entitlement of everyone you plan to employ to work in the UK. Failure to do so may result in a civil penalty or criminal conviction.
British citizens can currently work in the UK without restrictions. Since 1 July 2021, Irish citizens can continue to use their passport or passport card to prove their right to work in the UK.
All other EU, EEA, and Swiss citizens will no longer be able to use their passport or national identity card to prove their right to work. You'll need to check their right to work online using:
- a share code
- their date of birth
You can also check someone's original documents instead if they do not have a UK immigration status that can be shared with your digitally. Check which types of documents give someone the right to work in the UK.
You could face a civil penalty if you employ a worker and have not carried out a correct right-to-work check.
Even if you think that a potential employee has the right to work in the UK, you should still make the necessary checks. You should ask candidates to provide evidence of their right to work in the UK by producing original copies of documents specified by the UK Visas and Immigration (UKVI).
For more information on checking an employee's eligibility, see ensuring your workers are eligible to work in the UK.
In addition, check if someone can work in the UK on the GOV.UK website.
Employing someone who needs permission to work in the UK
You may need a sponsor licence to employ someone from outside the UK.
You do not need to sponsor an EEA or Swiss national, or their eligible family members, if they arrived in the UK before 11pm on 31 December 2020, provided they applied for status on the EU Settlement Scheme by 30 June 2021 and that application was granted. With limited exceptions, you do not need to sponsor Irish citizens.
Read GOV.UK guidance on sponsorship.
For more information on checking an employee's eligibility, see ensuring your workers are eligible to work in the UK.
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Withdrawing job offers where checks are not satisfactory
Conditional job offers can be withdrawn if checks prove unsatisfactory.
No contract of employment exists until a candidate has accepted an offer and all conditions under which the offer was made have been satisfied.
You can withdraw conditional job offers made subject to suitable references and criminal records checks, where the results are not as you expected.
If a candidate starts work before the results of checks have been received, you should make it clear that the offer may be withdrawn if the checks prove unsatisfactory - see pre-employment checks: checking references.
You may also wish to offer employment subject to a trial or probationary period. The length of the period may depend on the type of job and how much time is needed to demonstrate the necessary skills.
If you decide to withdraw the offer at the end of the period, you need to give the employee the notice period specified in their written statement and follow the statutory dismissal procedure in terminating their employment. It's also highly advisable to explain clearly why the offer is being withdrawn to avoid potential legal claims, eg, for discrimination.
If no notice period has been agreed, they are entitled to the statutory minimum notice period, or to any longer period which is the established custom or practice within the industry.
For more guidance, see the employment contract and issue the correct periods of notice.
An alternative to withdrawing an offer is to extend the probationary period - if the contract allows - and to provide appropriate training.
Employees cannot claim unfair dismissal before completing one year's service unless it is for a number of automatically unfair reasons. Read more on dismissing employees.
However, an employee dismissed during or at the completion of their probationary period may be able to claim breach of contract if, for example, you have not provided training that you promised would be given.
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Pre-employment checks: data protection issues
Data protection considerations when making pre-employment checks.
The Data Protection Act 2018 applies to personal information - data about living, identified, or identifiable individuals, including information such as names and addresses, bank details, and opinions expressed about an individual.
Six data protection principles
There are six data protection principles. Information should be:
Lawfulness, fairness, and transparency
You must process personal data that you collect on individuals in a lawful, fair, and transparent manner
Purpose limitation
You must only collect personal data for a specific, explicit, and legitimate purpose, and you must clearly state what this purpose is and only hold the data for as long as necessary to complete that purpose
Data minimisation
You must ensure that the personal data you process is adequate, relevant, and limited to what is necessary in relation to your processing purpose
Accuracy
You must take every reasonable step to update or remove data that is inaccurate or incomplete, and individuals have the right to request that you erase or rectify erroneous data that relates to them
Storage limitation
You must delete personal data when you no longer need it, and timescales are dependent on your business's circumstances and the reasons why you collect this data
Integrity and confidentiality
You must keep personal data safe and protected against unauthorised or unlawful processing and against accidental loss, destruction, or damage
Read Information Commissioner's Office (ICO) guidance on data protection.
The use of sensitive information - including information that might be disclosed during a criminal records check - is more tightly controlled. For further information, see ICO guidance on criminal offence data.
Pre-employment guidelines to follow
There are some guidelines you should keep in mind in relation to pre-employment checks.
You should:
- only carry out checks which are necessary
- think carefully about the best point in the process to carry out the different checks
- where possible, only check the successful applicant
- let applicants know what checks will be made and how they will be carried out
- make sure that checks are carried out for a specific purpose
- only use sources that will reveal relevant information
- only rely on information that comes from sources you trust
- give the candidate the chance to explain if a check reveals adverse information about them
- if a third party is to be involved in the process, eg, a previous employer not listed as a referee - let the applicant know
Any information you gather in the process of making your pre-employment checks must be kept securely and confidentially. Any information gathered must not be kept for longer than is needed for its legitimate purpose.
The candidate has the right to ask to see any information you hold on them, which you must supply within one month of receiving the request. This information will be provided free of charge; however, where requests are manifestly unfounded or excessive, you can charge a reasonable fee for the administrative costs of providing the information.
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Pre-employment checks: ensuring candidates are eligible to work in the UK
In this guide:
- Pre-employment checks
- Advantages of pre-employment checks
- Pre-employment checks: identity checks
- Pre-employment checks: checking references
- Pre-employment checks: checking qualifications
- Pre-employment checks: health checks
- Pre-employment checks: applying for a criminal records check
- Pre-employment checks: ensuring candidates are eligible to work in the UK
- Withdrawing job offers where checks are not satisfactory
- Pre-employment checks: data protection issues
Advantages of pre-employment checks
Making pre-employment checks to comply with the law.
Pre-employment checks are an important part of the recruitment process.
They help you to:
- comply with the law by ensuring the employee has permission to work - and remain - in the UK and has not been barred from carrying out the job - eg for roles working with vulnerable groups or holding the position of director
- check that the potential employee is suitably qualified or skilled for the job
- assess whether the potential employee is suitable for the job - eg for roles working with vulnerable groups or security roles
- check that the employee is able to carry out the job - though you must ensure you do not discriminate in breach of the Disability Discrimination Act 1995
Types of checks
There are a range of checks you can carry out, some of which are compulsory and others which may be desirable. These include:
- identity checks - see pre-employment checks: identity checks
- AccessNI disclosures - see pre-employment checks: applying for a criminal records check
- evidence of the right to work and remain in the UK - pre-employment checks: ensuring candidates are eligible to work in the UK
- references - see pre-employment checks: checking references
- qualifications - see pre-employment checks: checking qualifications
- health - see pre-employment checks: health checks
You must ensure your checks are not discriminatory (for example, a health check that discriminates against disabled people and is not necessary for the job) and do not discourage people from applying for the job. For more guidance, see how to prevent discrimination and value diversity.
You can make any job offer conditional on the outcome of pre-employment checks.
A conditional job offer does not become a binding employment contract until both parties have agreed to it and can be withdrawn if the conditions are not met. See withdrawing job offers where checks are not satisfactory.
You should carry out your checks as quickly as possible once a conditional offer has been made.
Protective security guidance
The National Protective Security Authority (NPSA) provides protective security advice. This is for companies and organisations that deliver the UK's essential services.
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Pre-employment checks: identity checks
Why you should check a candidate's identity and how you can go about it.
The first check you should carry out is to confirm the identity of the candidate and establish that their identity is genuine.
You should not undertake any other checks until you are satisfied that the candidate is who they claim to be.
How to check a person's identity
You can check a person's identity by:
- requesting original copies of documents - such as passports, birth certificates, and driving licences
- asking for copies of documents that confirm the person lives where they claim they do, eg, provide a recent bank statement or utility bill with their name and address on it
- requesting a Certificate of Registration, or a Biometric Residence Permit, and/or immigration documents where relevant
- using a commercial online database checking service
Whilst these checks can prove that an identity exists, they cannot prove that the identity rightfully belongs to the person using it. You should back up any electronic check by obtaining original documents to support the claim.
Job offer templates from Acas including a pre-employment checklist template.
The HM Passport Office has introduced a number of measures to help employers check for identity fraud.
Read more on the HM Passport Office's responsibilities and priorities.
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Pre-employment checks: checking references
How and when you should check references.
Although not compulsory, it is advisable to check a potential employee's references.
You can do this in writing or by telephone at any point during the recruitment process. Some candidates will prefer you not to check their references until they have been offered the job, and you should seek their consent before any referees are contacted.
There is no automatic right to receive a reference from a previous or current employer, except for roles in organisations covered by the Financial Conduct Authority and the Prudential Regulation Authority. The easiest way to obtain references is in writing.
References should give facts such as start and end dates, job title, salary, and sickness absences (excluding any absence related to a disability or parental leave).
You may wish to follow up on the information disclosed by having an informal conversation with the author of the reference, or the previous employer. Asking specific questions can disclose additional information, for example, details on the employee's performance, integrity, relevant personal information, and reasons for leaving. However, caution should be taken as to how any additional information is interpreted. After an informal conversation, good practice suggests:
- Any information provided should not be used as a substitute for you making your own judgement about employment.
- The information should be weighed against all evidence received during the recruitment process, making a balanced decision that takes into account all available information.
- Consideration as to the context and circumstances of the information provided should be carried out, as circumstances can change. It may be appropriate to involve the potential employee in this consideration.
Are references confidential?
Generally, employees do not have the right to ask their employer to see a job reference that the employer has written about them, which has been given in confidence. However, they may be able to gain access to it from the person the reference is sent to, so you should not assume a reference will stay confidential.
Individuals may also be able to access notes made about them during a telephone reference as well as any notes you make during and after their interview.
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Pre-employment checks: checking qualifications
How and when you should check qualifications as part of your pre-employment checks.
As well as looking at references, you should also check the candidate's qualifications, especially when the qualification is essential to the position you want to fill. In some professions, candidates must be in possession of specific qualifications before they can practice.
You can check qualifications by asking to see the candidate's certificates. Alternatively, you can check with the awarding bodies or use one of the checking services.
The Council for Curriculum Examinations & Assessment (CCEA) has details of the qualifications it accredits. Information is also available about the competence and performance levels they are based on. Read CCEA guidance on post-16 qualifications.
UK ENIC is the UK national agency for international qualifications and skills and can help you compare overseas qualifications with UK equivalents. Compare overseas academic qualifications (registration required).
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Pre-employment checks: health checks
Anti-discrimination and data protection considerations when asking candidates to complete a health check.
You may wish to include health checks as part of your recruitment process. A health questionnaire may ask about individual and family history and lifestyle. They can highlight potential problems requiring a follow-up, eg, by a medical examination.
Questions about disability and health during the recruitment process
You should take great care when asking about a job candidate's disability or health concerns. You should ensure that you seek this information for the right reasons and not in order to discriminate against disabled people.
The Equality Commission suggests giving job candidates the opportunity on an application form, or on a monitoring form, to indicate any relevant effects of a disability and to suggest any reasonable adjustments which may help them overcome any disadvantage in their potential workplace.
You have an obligation, under the Disability Discrimination Act, to make reasonable adjustments for disabled employees or applicants at all stages of the recruitment, selection and employment process.
Read Equality Commission guidance on hiring new staff.
Asking a question about disability is not in itself discriminatory. However, your conduct following the candidate's response could lead an industrial tribunal to conclude that you have carried out a discriminatory act.
When to carry out pre-employment health checks
You should only complete pre-employment health checks:
- once you have offered the job to a particular person
- where any candidate - disabled or not - would be required to undergo testing to decide if they are fit to carry out the job
- where testing is needed to meet any legal requirement, eg, eye tests for commercial vehicle drivers
- when you are sure you need this information and have policies in place to securely hold the information as required by the Data Protection Act, regardless of whether it is in paper or electronic form
The level of assessment will depend on the nature of the job and can range from simply checking the levels of absence in a previous job to a full health assessment.
If you are making a job offer conditional upon the candidate's fitness for the work, this should be stated clearly in the offer letter.
You must ensure you are not carrying out discriminatory practices in asking potential employees to pass a health check. Health checks - if required - should be carried out on all candidates to avoid unfairly discriminating against disabled candidates. For further guidance, see how to prevent discrimination and value diversity.
You may be required to pay a fee for a medical report from a candidate's GP. The candidate must give you their written consent before you request a medical report.
Candidates have the right to see the report and can request that it be amended or withheld from you. Even without the candidate seeing the report, the doctor must keep it for 21 days before sending it to the employer.
Alternatively, an employer may refer a prospective employee to occupational health. The employer must seek the candidate's consent before referral, and the employer should pay for the referral.
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Pre-employment checks: applying for a criminal records check
How and when to request an AccessNI check, the application process, and how to use the information provided.
You can apply for a criminal records check for the potential applicant from AccessNI. This is usually required when people are working regularly with children or vulnerable adults or, for example, as part of the taxi driver licensing regime in Northern Ireland. The Security Industry Authority also carries out a criminal record check on anyone who applies for a security licence.
It is important to ensure that a position is eligible for an AccessNI check before starting the process. Eligibility is governed by the Rehabilitation of Offenders (Exceptions) Order (Northern Ireland) 1979 (as amended). You should contact AccessNI if you are unsure whether a position is eligible for a check.
Criminal records checks should not be requested until a job offer is made, but you should make it clear, in writing, that the job offer is conditional upon a criminal records check.
There are three types of criminal records check - basic, standard and enhanced. Legislative provisions may require that either a Standard or Enhanced Disclosure is requested for someone commencing employment in certain sectors. The type of check you will need to make will depend on the work that is to be undertaken.
The Disclosure and Barring Service (DBS) helps employers in Northern Ireland make safer recruitment decisions. The main criminal record checks are now called a DBS check. A DBS check is only necessary for certain types of jobs involving vulnerable groups, eg working with children, in healthcare, prisons and courts. The DBS was established in 2012 and carries out the functions previously undertaken by the Criminal Records Bureau and the Independent Safeguarding Authority. It is accessible through AccessNI.
For more information on each type of check, see AccessNI criminal records checks.
Avoiding discrimination
Once you have received your copy of the AccessNI disclosure certificate, you can assess whether the candidate is suitable for the job. An AccessNI disclosure will reveal previous convictions. Generally, under the terms of the Rehabilitation of Offenders (Northern Ireland) Order 1978, someone convicted of a criminal offence who does not receive any further convictions during 'the rehabilitation period' becomes a rehabilitated person. Their conviction is regarded as spent - therefore, after a certain period of time, you should treat the person as if the conviction had not happened.
However, a conviction resulting in a prison sentence of more than two and a half years can never be spent.
A person must disclose all convictions - including spent ones - if the job offered falls into an exempted category according to the Rehabilitation of Offenders (Northern Ireland) 1978, including:
- regular contact with children and vulnerable adults
- accountancy
- work as a barrister
- police work
- posts relating to the administration of justice or financial regulation
- posts involving national security
Whether the conviction is spent or unspent, you should carefully weigh a number of factors, including:
- how long ago the offence was committed
- the candidate's age at the time
- the relevance of the offence to the job offered
- the penalty awarded
- whether the offence was isolated or part of a pattern of offending
- what is known about the person's behaviour before and since
People should not be unfairly discriminated against due to past convictions. You should also give the candidate a chance to explain if a check reveals adverse information about them.
For details of your legal obligations when applying for AccessNI checks and using the sensitive personal information on a certificate see employing someone with a criminal record.
Read employers' guidance on recruiting people with Northern Ireland conflict-related convictions.
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Pre-employment checks: ensuring candidates are eligible to work in the UK
Preventing illegal working - the checks you must make, who is eligible for work and who needs permission.
Employers need a sponsor licence to hire most workers from outside the UK. See right to work checks: employing EU, EEA and Swiss citizens.
All employers in the UK have a responsibility to stop illegal workers. You must therefore check the entitlement of everyone you plan to employ to work in the UK. Failure to do so may result in a civil penalty or criminal conviction.
British citizens can currently work in the UK without restrictions. Since 1 July 2021, Irish citizens can continue to use their passport or passport card to prove their right to work in the UK.
All other EU, EEA, and Swiss citizens will no longer be able to use their passport or national identity card to prove their right to work. You'll need to check their right to work online using:
- a share code
- their date of birth
You can also check someone's original documents instead if they do not have a UK immigration status that can be shared with your digitally. Check which types of documents give someone the right to work in the UK.
You could face a civil penalty if you employ a worker and have not carried out a correct right-to-work check.
Even if you think that a potential employee has the right to work in the UK, you should still make the necessary checks. You should ask candidates to provide evidence of their right to work in the UK by producing original copies of documents specified by the UK Visas and Immigration (UKVI).
For more information on checking an employee's eligibility, see ensuring your workers are eligible to work in the UK.
In addition, check if someone can work in the UK on the GOV.UK website.
Employing someone who needs permission to work in the UK
You may need a sponsor licence to employ someone from outside the UK.
You do not need to sponsor an EEA or Swiss national, or their eligible family members, if they arrived in the UK before 11pm on 31 December 2020, provided they applied for status on the EU Settlement Scheme by 30 June 2021 and that application was granted. With limited exceptions, you do not need to sponsor Irish citizens.
Read GOV.UK guidance on sponsorship.
For more information on checking an employee's eligibility, see ensuring your workers are eligible to work in the UK.
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Withdrawing job offers where checks are not satisfactory
Conditional job offers can be withdrawn if checks prove unsatisfactory.
No contract of employment exists until a candidate has accepted an offer and all conditions under which the offer was made have been satisfied.
You can withdraw conditional job offers made subject to suitable references and criminal records checks, where the results are not as you expected.
If a candidate starts work before the results of checks have been received, you should make it clear that the offer may be withdrawn if the checks prove unsatisfactory - see pre-employment checks: checking references.
You may also wish to offer employment subject to a trial or probationary period. The length of the period may depend on the type of job and how much time is needed to demonstrate the necessary skills.
If you decide to withdraw the offer at the end of the period, you need to give the employee the notice period specified in their written statement and follow the statutory dismissal procedure in terminating their employment. It's also highly advisable to explain clearly why the offer is being withdrawn to avoid potential legal claims, eg, for discrimination.
If no notice period has been agreed, they are entitled to the statutory minimum notice period, or to any longer period which is the established custom or practice within the industry.
For more guidance, see the employment contract and issue the correct periods of notice.
An alternative to withdrawing an offer is to extend the probationary period - if the contract allows - and to provide appropriate training.
Employees cannot claim unfair dismissal before completing one year's service unless it is for a number of automatically unfair reasons. Read more on dismissing employees.
However, an employee dismissed during or at the completion of their probationary period may be able to claim breach of contract if, for example, you have not provided training that you promised would be given.
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Pre-employment checks: data protection issues
Data protection considerations when making pre-employment checks.
The Data Protection Act 2018 applies to personal information - data about living, identified, or identifiable individuals, including information such as names and addresses, bank details, and opinions expressed about an individual.
Six data protection principles
There are six data protection principles. Information should be:
Lawfulness, fairness, and transparency
You must process personal data that you collect on individuals in a lawful, fair, and transparent manner
Purpose limitation
You must only collect personal data for a specific, explicit, and legitimate purpose, and you must clearly state what this purpose is and only hold the data for as long as necessary to complete that purpose
Data minimisation
You must ensure that the personal data you process is adequate, relevant, and limited to what is necessary in relation to your processing purpose
Accuracy
You must take every reasonable step to update or remove data that is inaccurate or incomplete, and individuals have the right to request that you erase or rectify erroneous data that relates to them
Storage limitation
You must delete personal data when you no longer need it, and timescales are dependent on your business's circumstances and the reasons why you collect this data
Integrity and confidentiality
You must keep personal data safe and protected against unauthorised or unlawful processing and against accidental loss, destruction, or damage
Read Information Commissioner's Office (ICO) guidance on data protection.
The use of sensitive information - including information that might be disclosed during a criminal records check - is more tightly controlled. For further information, see ICO guidance on criminal offence data.
Pre-employment guidelines to follow
There are some guidelines you should keep in mind in relation to pre-employment checks.
You should:
- only carry out checks which are necessary
- think carefully about the best point in the process to carry out the different checks
- where possible, only check the successful applicant
- let applicants know what checks will be made and how they will be carried out
- make sure that checks are carried out for a specific purpose
- only use sources that will reveal relevant information
- only rely on information that comes from sources you trust
- give the candidate the chance to explain if a check reveals adverse information about them
- if a third party is to be involved in the process, eg, a previous employer not listed as a referee - let the applicant know
Any information you gather in the process of making your pre-employment checks must be kept securely and confidentially. Any information gathered must not be kept for longer than is needed for its legitimate purpose.
The candidate has the right to ask to see any information you hold on them, which you must supply within one month of receiving the request. This information will be provided free of charge; however, where requests are manifestly unfounded or excessive, you can charge a reasonable fee for the administrative costs of providing the information.
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Terms and conditions during maternity leave
In this guide:
- Maternity leave and pay
- The right to maternity leave
- Notification and confirmation of maternity leave
- When maternity leave can begin
- Terms and conditions during maternity leave
- Holiday and pensions during maternity leave
- Contact and work during maternity leave
- Changing a return date after maternity leave
- Returning to work from maternity leave
- Maternity leave and protection against detriment or dismissal
- Maternity pay
The right to maternity leave
Who qualifies for statutory maternity leave and how employers may offer enhanced leave rights.
All pregnant employees, ie those working under a contract of employment, are entitled to take up to 52 weeks of statutory maternity leave (SML) around the birth of their child. Employees automatically qualify for SML - it does not matter how long the employee has worked for you.
The 52-week SML period is made up of 26 weeks of ordinary maternity leave (OML) followed immediately by 26 weeks of additional maternity leave (AML).
Shared parental leave
In addition, an eligible mother can end her maternity leave early, and with her partner (this includes same-sex partners) or the child's father, opt for shared parental leave. Read more on shared parental leave and pay.
Compulsory maternity leave
An employee must take a minimum of two weeks' leave after the birth of her child - or four weeks if she works in a factory. You must not allow her to work during this time.
Multiple births
SML remains at 52 weeks regardless of the number of children resulting from a single pregnancy.
Stillbirth and miscarriage
If your employee gives birth to a stillborn baby, she is still entitled to maternity leave if the birth happens after 24 weeks of pregnancy.
If a miscarriage occurs before the end of the 24th week of pregnancy, the employee could take sick leave, or you could allow them to take compassionate leave, annual leave, or unpaid leave instead.
When a baby dies
If the baby is born alive at any point in the pregnancy but then later dies, the employee is still entitled to SML.
Parental Bereavement Leave and Pay
An employee may be eligible for Parental Bereavement Leave and Pay if they or their partner (this includes same-sex partners) either has a child who has died under 18 years old or had a stillbirth after 24 weeks.
Enhanced maternity leave
Employers can also provide enhanced maternity leave arrangements to attract and retain employees, which are more generous than the statutory entitlements.
For example, you could allow employees with more than a year's service to take more than 52 weeks' leave.
You can offer these arrangements either as a contractual right or on a discretionary, case-by-case basis, but use caution when exercising discretion to avoid claims of unfair treatment or discrimination.
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Notification and confirmation of maternity leave
Employee and employer obligations regarding maternity leave notification.
Employees should tell you the following information no later than the end of the 15th week before the expected week of childbirth (EWC):
- The fact that she is pregnant.
- The expected date of the baby's birth.
- The intended start date of her maternity leave - this cannot be earlier than the beginning of the 11th week before the EWC. The expected date of birth is given on the MATB1 form that the employee receives from her registered doctor or midwife to confirm that she is pregnant. An employee can change the start date of her leave - see when maternity leave can begin.
The EWC is the week in which the expected date of the baby's birth falls - starting with the preceding Sunday and ending the following Saturday. If the baby is born on a Sunday, that date is the first day in the EWC. The qualifying week is referred to as the 15th week before the EWC.
You may request notification of statutory maternity leave (SML) in writing.
SML entitlement if the 15-week deadline is missed
A woman who realises she is pregnant later than 15 weeks before the EWC week is still entitled to SML. In this event, the employee is expected to tell you the information above as soon as possible after the 15-week deadline.
SML notification and claiming statutory maternity pay (SMP)
The start date for SMP is normally the same as the start date for SML. Therefore, many employees will find it convenient to notify you of the start date of their SMP at the same time as they notify you of the start date of their SML.
If the employee plans to take SML, she only needs to provide you with a MATB1 form so you can work out whether she qualifies for SMP. If she does not qualify, you must return the MATB1 form to her because she will need it to claim Maternity Allowance.
See maternity pay.
Failure to give the required notification
If an employee does not give you the required notification, you can postpone the date she has chosen to start her SML.
You do not have to accept shorter notice, but you may have to make an exception where it was not reasonably practicable for the employee to give you notice any earlier.
For example, the employee may not be able to notify you properly if her baby is born much earlier than expected, eg well before the qualifying week. In these circumstances, she still qualifies for 52 weeks' SML. See when maternity leave can begin.
Encouraging early notification
It benefits both you and the employee if she notifies you well in advance of the 15th week before the EWC as you:
- know she is entitled to paid time off for antenatal care
- know that particular health and safety rules apply
- can start making arrangements to cover the period while the employee is away
For further guidance, see pregnancy at work.
Confirming the end date of SML
After receiving her notification, you must in turn notify the employee of the date on which her SML will end. This will normally be 52 weeks from the intended start of her SML.
You must give the employee this information within 28 days of her notification unless the employee has since changed the date her leave will start. In that case, you must notify her of the end date within 28 days of the start of her leave.
If you fail to give the employee proper notification and she wants to change her return date, she may not be obliged to comply with the eight-week notice requirement - see changing a return date after maternity leave.
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When maternity leave can begin
Beginning maternity leave and reasons why the start date may need to be changed.
An employee can choose to begin her statutory maternity leave (SML) any time from 11 weeks before the expected week of childbirth (EWC) up until the birth itself.
For the rules on notification for SML, see notification and confirmation of maternity leave.
Pregnancy-related absence
An employee can choose when to start her maternity leave. The exception is if she is absent from work for a pregnancy-related reason and the absence is after the beginning of the fourth week before the EWC - but before the date she notified you that she intended to start her leave. In this case, you can start the maternity leave as soon as she is absent.
In these circumstances, her SML will begin the day after the first day of her pregnancy-related absence.
Pregnant employees are entitled to paid time off for antenatal care - see employees' right to paid time off for antenatal care.
Childbirth before maternity leave has begun
SML also begins on the day after the day of childbirth if the birth occurs before:
- the notified SML start date
- the employee has notified you of any SML start date
This applies even if the birth takes place before the start of the 11th week before the EWC. In these circumstances, the employee should give you notice - in writing if you request it - of:
- the date of the birth if it has already taken place
- the original expected date of birth
The employee can provide you with evidence of the actual and expected dates of birth on the maternity certificate (MATB1) provided by her doctor or midwife.
Changing the start date of SML
After giving you her notification, the employee can change her intended start date as long as she notifies you of the new start date. She must do this by whichever is the earlier of:
- 28 days before the date she originally intended to start her leave
- 28 days before the new date she wants to start her leave
However, if it is not reasonably practicable for her to give you this much notice, she does not have to. In these circumstances, she should give you as much notice as possible. You may request this notification in writing.
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Terms and conditions during maternity leave
Certain terms and conditions continue to apply during statutory maternity leave.
An employee's contract of employment continues throughout her 52 weeks of Statutory Maternity Leave (SML) unless either you or the employee expressly ends it or it expires.
During SML an employee has a statutory right to continue to benefit from all the terms and conditions of her employment that would have applied to her had she been at work.
The only exceptions are terms relating to wages or salary - though you must pay her statutory maternity pay if she's eligible. See maternity pay.
Contractual terms and conditions
Examples of contractual terms and conditions that continue during SML include:
- gym membership
- participation in share schemes
- reimbursement of professional subscriptions
- the use of a company car or mobile phone (unless provided for business use only)
- childcare vouchers
- contractual annual leave (any annual leave the employee receives above the minimum 5.6 weeks per annum)
Whether or not you should pay a bonus to an employee on SML depends on the type of bonus and the terms of the particular bonus scheme. You should ensure that you do not withhold any bonus simply because the employee is pregnant or is on maternity leave.
An employee on SML may receive contractual pay if she works on a keeping-in-touch day - see contact and work during maternity leave.
Continuous employment, length of service, and maternity leave
SML does not break the continuity of employment.
This means the entire SML period counts towards an employee's period of continuous employment when determining eligibility for other statutory employment rights, eg the right to a redundancy payment.
Both ordinary maternity leave and additional maternity leave count for assessing seniority and personal length-of-service payments, such as pay increments, under their contracts of employment.
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Holiday and pensions during maternity leave
An employee's contractual benefits during maternity leave.
During statutory maternity leave (SML), an employee continues to accrue annual leave.
She will also continue to benefit from any occupational pension scheme contributions for some of the SML period, ie during the paid maternity leave period.
Accrual of annual leave during maternity leave
An employee continues to accrue both their full statutory annual leave entitlement of 5.6 weeks and any additional contractual entitlement throughout both ordinary maternity leave and additional maternity leave.
Employees will be able to carry over 5.6 weeks of leave into the next holiday year if they are unable to take the leave due to having taken maternity leave.
There is no legislative guidance on the right to carry over contractual leave in excess of the 5.6 weeks statutory leave.
An employee may not take annual leave during SML. You should instead allow the employee to take any untaken annual leave before and/or after her SML.
You cannot pay an employee in lieu of any untaken statutory annual leave unless the contract is terminated.
An employee's SML begins automatically if she gives birth during a period of annual leave - see when maternity leave can begin.
For more information on annual leave entitlements, see know how much holiday to give your staff.
Pension contributions during maternity leave
During ordinary maternity leave (whether or not the employee is receiving statutory and/or enhanced maternity pay) and any period of paid additional maternity leave, you should calculate the employer's contribution to an occupational pension scheme as if the employee is working normally and receiving the normal remuneration for doing so.
During any period that your employee is on additional maternity leave (AML) but not receiving any maternity pay, eg during the last 13 weeks of AML, you do not have to make any employer contributions to an occupational pension scheme unless the contract of employment provides otherwise.
If the occupational pension scheme rules require employee contributions to continue during maternity leave, her contributions should be based on the amount of statutory and/or enhanced maternity pay she is receiving.
Employee contributions will therefore stop during any period of unpaid maternity leave - eg during the last 13 weeks of AML - but the occupational pension scheme rules may allow her to still make voluntary contributions.
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Contact and work during maternity leave
You can keep in contact with an employee during maternity leave and she may work up to ten keeping-in-touch days.
Reasonable contact
During the statutory maternity leave (SML) period you can make reasonable contact with an employee - and they may make contact with you.
In addition, an employee can work as a way of keeping in touch with workplace developments.
Contact with employees on SML
You can make contact with the employee by any means, eg telephone, email, letter, or a meeting in the workplace.
The frequency and nature of any contact with them will depend on things like:
- the type of work and the employee's post
- any agreement that you might have reached with the employee before their leave began
- whether either party needs to communicate important information to the other, eg changes in the workplace that might affect the employee on her return
The amount of contact that is reasonable depends on whether the employee prefers to have frequent or minimal contact with you. It is a good idea to discuss how you will keep in touch with your employee before she begins her SML.
Remember that you must keep an employee informed of promotion opportunities and other information relating to her job that she would normally be made aware of if she was at work, eg organisation changes or redundancy situations.
Keeping in touch (KIT) days
Employees may, in agreement with you and on a voluntary basis, do up to ten days' work - known as keeping in touch (KIT) days - under their contract of employment during their SML period without it affecting their right to statutory maternity leave or pay.
An employee cannot use a KIT day during compulsory maternity leave - see the right to maternity leave.
During KIT days, employees can work for you. This could be her normal work or could be attending a conference, undertaking training, or attending a team meeting.
Any amount of work done on a KIT day counts as one KIT day. Therefore, if an employee comes in for a one-hour training session and does no other work that day, she will have used up one of her KIT days.
If work on a KIT 'day' spans midnight, this counts as one KIT day - as long as this is the employee's normal working pattern.
Payment for KIT days
You and the employee should agree on how much you will pay her for a KIT day - this could be set out in her contract of employment or you may decide on a discretionary, case-by-case basis.
If the employee is receiving statutory maternity pay (SMP) when she works a KIT day, you must continue to pay her SMP for that week.
The employee can work under her contract of service for the employer paying her SMP for up to ten days (KIT days) during her maternity pay period without losing any SMP.
If the employee has used her ten KIT days and she does any further work, she will lose a week's SMP for the week in which she has done that work. If a week in her maternity pay period contains only KIT days, she would be paid SMP for that week. If a week in her maternity pay period contains the last KIT day and she does a further day's work in the same week, she will lose SMP for that week.
The SMP the employee receives for the week in which she works a KIT day can count towards any contractual pay you agree with her for working that KIT day. However, you could agree that she will receive her normal daily rate in addition to the SMP for that week.
Whatever the arrangement, you can still continue to recover SMP from HM Revenue & Customs (HMRC) as normal - see maternity pay.
You will need to comply with your statutory obligations, such as paying at least the national minimum wage, as normal and ensuring women and men receive equal pay for work of equal value. See National Minimum Wage and National Living Wage - rates and overview.
KIT days: Protection against detriment or dismissal
An employee can only work a KIT day if she wants to and you agree to it - you cannot make an employee work a KIT day against her wishes, nor can the employee insist she works a KIT day if you do not agree to it.
It is unlawful for you to treat an employee unfairly or dismiss her because she:
- refused to work a KIT day
- worked - or considered working - a KIT day
If an employee believes that you have treated her unfairly or dismissed her under these circumstances, she may:
- resign and claim constructive dismissal
- raise a grievance with you, which may result in a tribunal claim for detrimental treatment, unfair dismissal and/or sex discrimination
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Changing a return date after maternity leave
Notification from employees regarding changes to their return date, or if they don't intend to return to work at all.
Unless the employee has notified you otherwise, the date she returns to work will normally be the first working day 52 weeks after her statutory maternity leave (SML) began.
Returning to work before the planned return date
If an employee wishes to return to work before the planned return date (usually the date you confirmed to them before they went on leave), she must give you notice at least eight weeks before her new return date. You can accept less or no notice at your discretion.
For example, if an employee was due to return to work after 52 weeks SML on 1 August, but then decided to return to work after 39 weeks of leave on 9 May, she would need to give you eight weeks' notice of the new date, ie by 14 March.
If you did not provide appropriate notification of when her leave should end, the employee does not have to give you eight weeks' notice - see notification and confirmation of maternity leave.
If the employee attempts to return to work earlier than planned without giving you notice, you can postpone her return by up to eight weeks. However, you may not postpone her return to a date later than the end of her 52-week SML period.
If the employee still comes to work during the period of postponement, you do not have to pay her.
Returning to work after the planned return date
If an employee wishes to return to work after the planned return date, she should give you notice of her new date of return at least eight weeks before the originally planned return date.
For example, if an employee originally notified you that she planned to return to work at the end of her ordinary maternity leave (ie after 26 weeks) on 1 October but - while on leave - decides that she wishes to take her full entitlement of 52 weeks, she must notify you of this eight weeks before 1 October, ie by 6 August.
If you didn't provide appropriate notification of when her leave should end, the employee does not have to give you eight weeks' notice - see notification and confirmation of maternity leave.
Employees who do not wish to return to work after maternity leave
An employee who does not wish to return to work at all after her SML must give you notice of this. This will be the same notice she would give for resignation in any other circumstances as required by her contract of employment.
However, as long as she specifies the date on which she wishes to terminate the contract (eg the date she was due back at work after SML), her SML continues.
In addition, if she terminates her contract before the end of the statutory maternity pay (SMP) period, you must continue to pay her SMP for the full 39-week SMP pay period, provided she has not started work for an employer who did not employ her in the 15th week before her expected week of childbirth.
Employees who don't return are not required to pay back any SMP they have received. See maternity pay.
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Returning to work from maternity leave
The automatic right to return to the same job depends on whether the employee is returning from ordinary maternity leave or additional maternity leave.
An employee is entitled to return to the same job that she had before going on statutory maternity leave (SML) if she only took ordinary maternity leave (OML), ie the initial 26-week period of SML. The rules are different where an employee takes all or some of her additional maternity leave (AML), ie the second 26-week period of SML.
Returning to work after OML
An employee who returns to work during or at the end of her OML period is entitled to return to the same job on the same terms and conditions of employment as if she had not been absent.
If you prevent an employee from returning to work, she may make a complaint of unfair dismissal and sex discrimination to an industrial and fair employment tribunal.
If she returns to work but you do not give her old job back, she may:
- resign and claim constructive dismissal
- raise a grievance with you, which may result in an industrial tribunal claim for sex discrimination or detrimental treatment
See maternity leave and protection against detriment or dismissal.
Returning to work after AML
An employee who returns to work during or at the end of her AML period is entitled to return to the same job on the same terms and conditions of employment as if she had not been absent.
However, if it is not reasonably practicable for you to let her return to her old job, you should offer her a job:
- that is both suitable and appropriate for her to do in the circumstances
- on terms and conditions that are no less favourable than those for her original job
If you offer the employee a job that fulfils the criteria above and she unreasonably refuses it, she will have effectively resigned.
If you offer the employee a job that does not fulfil the criteria, she may:
- resign and claim constructive dismissal
- raise a grievance with you, which may result in an industrial tribunal claim for sex discrimination or detrimental treatment
You should try to consult with employees during their SML about any proposed changes to their jobs in preparation for their return. See contact and work during maternity leave.
Taking parental leave after SML
Employees who qualify for parental leave may take some of this leave immediately following the end of their SML.
An employee is entitled to return to the same job as before if the parental leave meets both of the following conditions:
- it is for four weeks or less
- it is not preceded by any AML
If the parental leave period is for longer than four weeks and/or is preceded by a period of AML, the employee is treated as though they were returning to work after AML. See parental leave and time off for dependants.
Breastfeeding
Your health and safety obligations towards a breastfeeding employee are the same as they were when the employee was pregnant.
Pregnant workers and breastfeeding mothers are entitled to more frequent rest breaks. You should talk to them so you can agree on the timing and frequency.
You must provide a suitable area where a breastfeeding employee can rest. It should:
- include somewhere to lie down if necessary
- be hygienic and private so they can express milk if they choose to - toilets are not a suitable place for this
- include somewhere to store their milk, eg a fridge
See breastfeeding and the workplace.
Pregnancy during SML
If a woman becomes pregnant during her SML, she must notify you of this in the normal way - see notification and confirmation of maternity leave.
It is possible for her subsequent period of SML to begin as soon as the current one ends. In these circumstances, her rights on her eventual return are the same as they would have been had she just taken a single period of SML.
Flexible working requests
An employee returning to work may make a request to work flexibly, eg to change start or finish times, work from home, or do part-time hours. If possible, you should discuss this with the employee prior to SML, or during the keeping in touch process. Read more on flexible working: the law and best practice.
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Maternity leave and protection against detriment or dismissal
You must not unfairly treat or dismiss employees because they are taking, took, or sought to take statutory maternity leave.
Employees are protected from suffering a detriment or dismissal for taking or seeking to take, statutory maternity leave (SML).
Detrimental treatment and Statutory Maternity Leave
You must not subject an employee to any detriment by acting or deliberately failing to act, because she:
- sought to take SML
- availed of SML
Examples of detrimental treatment include denial of promotion, facilities, or training opportunities that you would normally have made available to the employee.
If an employee believes you have treated her detrimentally under these circumstances, she can take a claim of sex discrimination to an industrial tribunal.
Redundancy during Statutory Maternity Leave
If a redundancy situation arises at any stage during an employee's SML, you may not be able to continue employing her under her existing contract of employment.
In these circumstances, you must offer her - before that contract ends - any suitable alternative vacancy you have. This includes a vacancy with an associated employer or with a successor to the original employer.
The new job must start immediately after the end of the original one and must:
- be suitable and appropriate for her to do in the circumstances, and
- the capacity and place in which she is to be employed and the terms and conditions of her employment are not substantially less favourable to her than if she had continued to be employed under the original contract
If you fail to comply with these requirements and dismiss the employee, the dismissal will be unfair. She may also have a claim for sex discrimination.
However, if you end up making an employee on SML redundant because you had no suitable alternative work to offer her, the dismissal may be fair.
On dismissal, her SML period comes to an end, but her entitlement to statutory maternity pay (SMP) continues until the end of the 39-week SMP period - assuming it has not already ended.
You must provide written reasons for dismissal to any woman you dismiss or make redundant while she is pregnant or on SML.
Pay rises during SML
An employee on SML is entitled to benefit from any general improvements to the rate of pay, or other terms and terms, which are introduced for their grade or class of work - as if they had not been away.
Flexible working requests
Providing they meet the qualifying criteria, an employee returning to work from maternity leave may make a request to work flexibly, eg to adjust their start or finish times, work from home or do part-time hours. See flexible working: the law and best practice.
Dismissal on or after return to work from Statutory Maternity Leave
The dismissal of an employee will be automatically unfair if you dismiss her - or select her for redundancy in preference to other comparable employees - solely or mainly because she:
- has taken SML
- benefited from the terms and conditions of employment to which she was entitled during that SML period
- failed to return from her SML on time because you failed to give her any or adequate notification of the end date of her leave - see notification and confirmation of maternity leave
Dismissal, selection for redundancy, or other detrimental treatment in these circumstances may also amount to sex discrimination, for which industrial tribunal compensation is uncapped.
However, a dismissal may be potentially fair if, on the employee's return from additional maternity leave:
- you could not offer her the old job
- you - or an associated employer - offered her suitable alternative employment but she unreasonably refused
See returning to work from maternity leave.
Dismissal on grounds unrelated to Statutory Maternity Leave
It is still possible for you to fairly dismiss an employee who is on - or who has recently returned from - SML. If the reason for the dismissal is:
- largely or wholly unrelated to her SML
- not for any other reason that is unfair or unlawfully discriminatory
You must provide written reasons for dismissal to any woman you dismiss or make redundant while she is pregnant or on SML.
Dismissal of replacement employees
You can fairly dismiss an employee you took on to replace an employee on maternity leave. You should ensure that you follow a fair dismissal procedure in doing so, including the statutory dismissal procedure.
However, make sure you inform them that their position is only for maternity cover before they start.
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Maternity pay
Eligibility for statutory maternity pay (SMP), how to recover SMP payments, and the option of enhancements to SMP.
Statutory maternity pay (SMP) is paid for up to 39 weeks and usually covers the first 39 weeks of an employee's maternity leave.
Eligibility for statutory maternity pay
To be eligible for SMP, a pregnant employee must meet certain qualifying conditions.
For more information, see Statutory Maternity Pay and Leave: eligibility and proof of pregnancy.
The meaning of the term 'employee' for SMP purposes is different from the meaning for statutory maternity leave (SML) and other employment rights. This means that some workers who are not employees, eg agency workers, may qualify for SMP, even though they do not qualify for SML.
Statutory maternity pay rates and recovery
For the first six weeks you must pay your employee SMP a weekly rate equal to 90% of their average weekly earnings (AWE).
For the next 33 weeks you must pay them the lower of the following:
- The standard weekly rate of £187.18
- 90% of their AWE
You can recover some or all of your SMP payments from HM Revenue & Customs (HMRC) - the proportion you can recover depends on the size of your annual National Insurance Contributions (NICs) liability.
Read more on statutory pay and leave.
Enhanced maternity pay
If you wish, you can offer enhanced maternity pay arrangements to attract and retain employees, which are more generous than the statutory entitlements.
For example, you could:
- pay more than SMP over a certain period, eg full pay for the first six weeks, half pay for the next ten weeks, SMP for the remaining 23 weeks
- make a bonus payment on the employee's return to work
You could change the qualification criteria for these enhancements, eg the employee needs a year's continuous service.
You can offer these arrangements either as a contractual right or on a discretionary, case-by-case basis, but use caution when exercising discretion to avoid claims of unfair treatment or discrimination.
You can still recover from HMRC the SMP portion of any enhanced maternity pay.
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