The case of 11 year old Archie Battersbee, whose life support was withdrawn last month on the determination of the Supreme Court is, without doubt, a tragic and heart-breaking situation that no parent or child should ever have to suffer. 

Thankfully, most parents will never have to face such desperate circumstances as Archie’s did. However, whilst Archie’s circumstances were extreme and rare, very few parents (and carers) will be fortunate enough never to experience the struggle between personal responsibility and professional obligation at some point in their working lives.

Whilst many employers (particularly post-pandemic) offer flexible working models which can go some way to alleviate the pressures associated with work/life conflicts, now is also an opportune moment, in the wake of Archie’s desperate case, to re-visit the legal framework designed to support working parents (and other carers) and protect them from detriment and dismissal. 

Parental leave

All parents are entitled to 18 weeks’ unpaid leave per child up until the age of 18 in order to look after their welfare. This can include a parent spending time with their children, looking at new schools, settling them into childcare arrangements or any other similar activity. 

Parental leave is capped at 4 weeks per child per year. It must be taken as whole weeks rather than individual days and requires 21 days’ notice to be given to the employer.  As such, it is intended to be used for planned absences and cannot be used for emergencies or problems occurring in the short-term. 

Additionally, as parental leave only applies to employees who have been continuously employed for more than a year (and can be postponed by the employer by up to six months), it is unlikely to be an appropriate option for parents seeking to manage their parental responsibilities on a day-to-day basis. 

Emergency time off for dependants

In addition to planned parental leave, when an emergency occurs with a child or dependant an employee is able to take a reasonable amount of unpaid time off in order to remedy the situation.

This is a fairly limited entitlement with the definition of a “reasonable amount” of time off being deemed as only enough to deal with the problem in the short-term (normally no more than one or two days). 

Even so, it enables employees who may be responsible for elderly relatives, children or others who reasonably rely on them for assistance, to take time off work to provide help and support in cases such as injury/worsening of a condition, school closure, death, the birth of a child or for some other care arrangement where assistance is required at short-notice. 

Statutory parental bereavement leave and pay

Statutory parental bereavement leave and pay is a relatively new entitlement that came into force in April 2020. 

The purpose of this right is to give employees the time and space to grieve after the loss of a child. They recognise that not everyone deals with grief at the same pace and provides the flexibility for parents to take further time off at some stage in the future, if required. 

Statutory Parental Bereavement Leave is a day one right for all employees who are either parents or have day-to-day responsibility over a child who is living with them. It entitles all parents to 2 weeks’ leave to be taken within 56 weeks of the death of a child under the age of 18 or following a stillbirth after 24 weeks of pregnancy. 

The right to Statutory Parental Bereavement Pay, however, is only available for parents who have worked for their employer continuously for more than 26 weeks and earn an average of £123 per week.  The current rate of pay is either £156.66 per week or 90% of an employee’s average salary, whichever is lower. 

Employees seeking to take Statutory Parental Bereavement Leave within the first eight weeks following the death/stillbirth of the child can give notice to their employer that they are taking leave on the day they wish to take it (and before their working day would normally start).  Beyond eight weeks, employees must provide one week’s notice so their employer can plan appropriately for their absence. 

In order to benefit from Statutory Parental Leave Pay, in addition to the eligibility requirements referred to above, the employee must request the pay within 28 days of the leave being taken, starting from the first day of the week payment is being claimed for. 

Flexible working

Another statutory right given to employees that may help to accommodate more long-term responsibilities is the right to request to work flexibly.  In this context, “flexible” working may include adjusting start and end times, working from home, job sharing or working compressed hours, allowing employees to maintain working responsibilities whilst managing other commitments to children and dependants. 

Although the Flexible Working Bill has proposed flexible working as a day one right, this is still not in force in the UK and as such, employees are only eligible to request flexible working after 26 weeks’ continuous employment.  In addition, it should be noted that the right to request a flexible working arrangement is just that – a right to request to work flexibly (without risk of detriment or dismissal for doing so).  It does not give the employee the right to have that request agreed or approved - although if an employer wishes to refuse a flexible working request, it will need to rely on one of eight statutory grounds for refusal. 

Please be aware that a request for flexible working can only be made once every 12 months and must be dealt with within 3 months (which includes any appeal) of the request being made.

Neonatal Care (Leave and Pay) Bill

Introduced as a private members bill into Parliament on 15 June 2022, the Neonatal Care (Leave and Pay) Bill proposes an additional 12 weeks of paid leave to parents of premature babies who require neonatal care before they reach 28 days’ old. 

The right will apply to all employees, from day one of their employment, whose child has been admitted to hospital for a continuous period of 7 full days or more. The purpose of the leave is to give parents time off in addition to maternity/paternity leave, providing partners with the flexibility to share caring responsibilities beyond the 2 weeks of paternity leave and allow parents to prioritise their child over work commitments. 

It is not yet clear what the notice provisions will be in order to take Neonatal leave, but the Bill does allow for regulations in this respect to be drafted in. 

Statutory Neonatal Leave Pay, it appears, will only be eligible to employees who have six weeks’ continuous service and earn at least the lower earnings limit for NIC contributions.

It is not yet known when this Bill will pass into law.  In the meantime, both employees and employers should continue to make use of the other employment rights set out above to support parents of neonatal children. 

Associative disability discrimination

Finally, it is also important to bear in mind that the Equality Act 2010 provides protection for workers on account of their association with someone with a protected characteristic (such as disability). 

This means that if parents/carers are disadvantaged within the workplace because of the care they are providing for a disabled child, they may have grounds to make a claim for disability discrimination 

Associative discrimination, however, is a form of indirect discrimination. This means that an employer will have a defence if the less favourable treatment can be objectively justified as a proportionate means of achieving a legitimate aim. 

This may be particularly relevant to bear in mind when making decisions in relation to flexible working requests. Employers should be alive to prospect that a request may have been made by an employee in order to provide better care for their disabled child. Any refusal of that request will not only need to satisfy one of the eight statutory grounds for refusal but also, potentially (and depending on the circumstances) meet the objective justification test

Prettys Solicitors' top tips 

Navigating through the sensitive and difficult circumstances that sometimes arise for working parents can be tricky.  Below are a few steps employees and employers can take to help smooth the way for both parties to avoid undue additional stress. 

Tips for Employers 

• Develop straightforward policies and procedures that clarify expectations and are easy to follow by employees and employers alike.

• Ensure decisions are consistent.  Where they depart from the norm, ensure there are good reasons for doing so. 

• Maintain confidentiality and only share information about an employee’s circumstances with their knowledge and blessing. 

• Get ahead of the curve!  If you offer enhanced terms for other family-friendly rights, consider now whether you will you do the same for Neonatal Leave and Pay so you can hit the ground running when the new legislation takes effect. 

• Seek legal advice when a situation becomes difficult to manage or particularly risky.

Tips for Employees

• Keep the lines of communication open.  Be prepared to have honest and frank conversations about what you need.  Be flexible and open-minded with respect to alternative proposals. 

• Familiarise yourself with your employer’s policies and procedures. 

• Be prepared! Before submitting a flexible working request, consider what (if any) impact it might have on workload (for you and your colleagues) and be willing to propose solutions.  The harder you make it for your employer to object, the more likely they may be to agree. 

• When in doubt – seek legal advice.