From today, 1 October 2014, employees and agency workers who have a “qualifying relationship” with a pregnant woman or her expected child are entitled to take unpaid time off during working hours to accompany the woman to two antenatal appointments.

This new right supplements the existing right of pregnant women to paid time off for such appointments.

Who is Entitled to Unpaid Time Off?

The new right applies to employees or agency workers who are: 

• The child’s father

• The pregnant woman’s spouse, civil partner or partner (of either sex) in an enduring relationship

• An intended parent of the child in a surrogacy arrangement, where he or she expects to be entitled to, and intends to apply for, a parental order in respect of the child.

For employees, the right is available from the start of their employment.  For agency workers the right is subject to the standard 12 week qualifying period.

How Much Time Off is Allowed?

The statutory entitlement is limited to two appointments, capped at 6.5 hours unpaid leave each time, i.e., a total of 13 hours.  This covers travelling time, waiting time and the appointment itself.

Employers, agencies and hirers are, of course, free to improve on the statutory entitlement by offering more time and/or paid time off.

Employees can also request to use annual leave to take extra time.

What Evidence is Required?

Employers are entitled to request that the employee provides a signed declaration, which can be given electronically, including by e-mail, stating:

• That he or she has a qualifying relationship with the pregnant woman or her expected child.

• That the purpose of the time off is to accompany a pregnant woman to an antenatal appointment. 

• That the appointment has been made on the advice of a registered medical practitioner, midwife or nurse.

• The date and time of the appointment.

What Could Go Wrong?

Employees or agency workers who are unreasonably refused time off for this purpose are entitled to apply to the Employment Tribunal for a declaration and compensation amounting to twice the hourly rate of pay for each of the hours they ought to have been granted as time off.

A difficulty for employers, however, is that the new regime offers no guidance as to when it will be reasonable for an employer to refuse a request.  This will be a question for the Employment Tribunal to decide.

In addition, both employees and agency workers are protected from suffering any detriment for asking for, or taking, the time off and, in the case of employees, from dismissal for that reason.

What Steps Should Employers Take?

Employers should make managers aware of this new right, to ensure any requests are handled appropriately.

Existing relevant policies, e.g., policies indicating that employees should apply to take annual leave in such circumstances, should be reviewed and amended as necessary.