Parental Leave and other Rights

Guidance note 13 to the EMPLOYMENT (JERSEY) LAW 2003 incorporating the Employment (Amendment No. 11 (Jersey) Law 2020

Parental Leave Rights

This short statement is intended to explain to employers and employees the rights which are set out in Part 5A of the Employment Law (along with adoption and parental leave rights see guidance note 14a).  It is not intended to cover the requirements of the Law, nor does it represent a statement of the Law. It constitutes a guide only and detailed legal advice should be taken in relation to each individual situation. 

Guidance note 13a covers rights in respect of Breastfeeding.

NB:  The legislation does not apply to employees undergoing IVF treatment or to the fostering of children, but does apply to those working under zero hour contracts.

The aim of this part of the Law is:

1. to set out the rights and responsibilities of employers towards employees who are pregnant or taking part in adoption proceedings and towards second parents. and
2.  Provide the statutory entitlement for employees:

• to take time off for ante-natal care including those employees who qualify* and
• to take period(s) of Parental leave;

Right to time off for ante-natal or pre-adoption appointments (Art 55B)

Any pregnant employee is entitled to:

• take paid time off work to attend an ante-natal care appointment on the advice of a medical professional, during her normal working hours (as stated in her contract of employment);

• Other than her first appointment, the employee must show her employer:-

1. A certificate from a medical professional stating that she is pregnant; and
2. Either an appointment card or another document showing the date and time of the appointment.

* an employee who qualifies as someone entitled to take time off during their normal working hours to accompany a woman for an ante-natal appointment is:

• someone who is married to her, or
• her civil partner, or
• her partner who is the father of the expected child.

 Payment for time off to attend ante-natal care/pre-adoption appointments (Art 55C)

A pregnant employee who is entitled to take off for ante-natal care (as per Art 55B above) (whether permitted by the employer or not) is entitled to be paid at her normal hourly rate (as calculated under Schedule 1).

Any person who has a qualifying relationship with a pregnant woman has the right to paid time off for up to 10 ante-natal appointments (any additional appointments do not have to be paid).

Entitlement to Parental leave (Art 55D)

An employee who qualifies as someone entitled to take time off during their normal working hours to accompany a woman for an ante-natal appointment is:

• someone who is married to her, or
• her civil partner, or
• her partner who is the father of the expected child.

An employer must not require an employee to work during any period in which the employee takes paid parental leave.

Parental leave can commence no earlier than 11 weeks before the effective date of childbirth/adoption placement and ends 2 years from the date of child birth/adoption placement.

For a period of 6 weeks, an employee is:

• Entitled to be paid their normal salary minus any sum received under the Social Security (Jersey) Law 1974 in respect of short-term incapacity benefit (Art15) or maternity allowance (Art 25);
• Entitled to all the other usual benefits as set out in their terms and conditions of employment; and
• Is bound by the provisions and obligations arising from the terms of employment.

NB: The rights to paid time off for ante-natal care and parental leave are effective from day 1 of employment, therefore, employees are able to exercise these rights from the first day of employment

Paid parental leave (Art 55E)

During a period of paid parental leave, an employer must not require an employee to work, and the paid parental leave period must start on the day of childbirth. During the period of parental leave, an employee is entitled to 6 weeks’ pay.

Notification of intention to take parental leave in relation to childbirth (Art 55F) and periods of parental leave (Art 55H)

All parents are entitled to 52 weeks leave, with only the first six weeks to be paid by the employer (as set out above).

This leave can be taken in up to 3 separate blocks over a 2-year period and each block of parental leave must be of no less than 2 weeks.

Parental leave applications should not specify a date earlier than the beginning of the 11^th week before the expected date of childbirth.

An employee should advise the employer in writing before the end of the 15^th week (this does not apply to adoption) before the expected date of birth – or as soon as is reasonably practicable - of the following:

• The fact of the pregnancy
• The expected week of childbirth
• The intended start date of parental leave (and if this is not a continuous period, the dates for each period of leave)

An employer can request the employee to provide a certificate from a registered doctor, midwife or nurse, which states the expected week of childbirth.

Please note parental rights apply to employees working under zero hour contracts.  to calculate the pay for the 6 weeks paid parental leave the employer needs to look at the average earnings over the previous 12 weeks.

An employee who has notified the employer of start date for parental leave may vary this original date in writing of a new date by whichever is the earlier of the following:

• 42 days before the original date; or
• 42 days before the new date

Or if neither of the above are reasonably practicable, then as soon as it is reasonably practicable to do so.

An employer upon receipt of a new date notification must take all reasonable steps to accommodate the request intended for the second and third parental leave periods.  The consideration in respect of reasonable steps a include:

• The financial, administrative and other resources available to the employer;
• The nature and size of the business;
• The implications in respect to other employees and of the employer; and
• The requirement to ensure that any second/third parental leave period must take place within the 2 year period (starting with the birth/adoption placement of the child)

Notification of intention to take parental leave in relation to adoption (Art 55G)

Notification in respect of parental leave must be given to the employer:

• No later than 7 days after the date on with the employee receives official notification of having been matched with a child for adoption, or in the case of an overseas adoption after the employee receives notice of the date on which the child is to arrive in Jersey.

Notification in writing should include:

• The intended adoption
• The expected week of adoption
• The date on which the employee intends a period of parental leave to begin, and
• The duration of that period of parental leave

If it is not reasonably practical to advise the employer as above then the employee should advise the employer as soon as such date is known.

Application of terms and conditions during unpaid parental leave (Art 55I)

An employer must not require an employee to work during any period of parental leave to which the employee is entitled.

During any period of parental leave an employee:

• Has the right to all the usual benefits as set out in their terms and conditions of employment except remuneration*; and
• is bound by the provisions and obligations arising from the terms of employment.

* other than any salary, wages, commission or bonus for work done prior to commencing ordinary maternity leave. If any sums are payable to the employee during parental leave by way of wages or salary, the employer may deduct any sum that the employee received under the Social Security (Jersey) Law 1974 in respect of short-term incapacity benefit (Art 15) or maternity allowance (Art 25);

Work during parental leave period (Art 55J)

An employee may agree to work (but cannot be required to work) during any period of parental leave. Work can include any training or activity undertaken as part of the keeping in touch with the workplace. Keeping In Touch (KIT) days:

• do not bring the parental leave to an end;
• are treated as a day's work;
• do not extend the length of the parental leave period.

Reasonable contact between the employee and the employer to enable them to have a discussion about an employee's return to work does not:

• constitute work; or
• end the period of parental leave.

Notification of intention to return to work (Art 55K)

If an employee wishes to return to work from parental leave at an earlier date than was previously notified and agreed with the employer, the employee must give the employer not less than 42 days’ notice of the intended date of return in writing

Under the provisions of this part of the Employment Law, the employer is entitled to receive at least 42 days’ notice of an intention to return to work earlier than the end of the parental leave period in question, and may postpone the employee’s return to such a date as enables 42 days’ notice to elapse. What an employer cannot do is postpone the return to work to a date after the end of the parental leave period.

If an employee returns to work despite a postponement by the employer there is no contractual obligation on the part of the employer to make any payment until the postponed date of return.

An employer must take all reasonable steps to accommodate an employee’s intended early return to work. In determining what ‘reasonable steps’ are, the matters to be considered are:

• The financial, administrative and other resources available to the employer;
• The nature and size of the business;
• The requirement to ensure that any second/third parental leave period must take place within the 2 year period (starting with the birth/adoption placement of the child)

Right to return after parental leave (Art 55L)

An employee is entitled to return to work after the end of a period of parental leave to the job they were employed in immediately before going on parental leave and this entitlement is to return:

• with seniority, pension and other similar rights as if the employee had not been absent;
• on terms and conditions that are no less favourable than those which would have applied had the employee not been absent.

Further advice or information may be obtained from the Jersey Advisory and Conciliation Service in person or by telephoning (01534) 730503 or by email jacs@jacs.org.je; www.jacs.org.je

June 2020