In Chris’ latest Coffee Break Briefing, he explores the different types of statutory leave, highlights the key enforcement risks and potential claims and outlines the latest changes and new entitlements employers need to be aware of.
When are employees entitled to sick leave?
Employees are entitled to take statutory sick leave when they are unfit for work. There is no limit on how long this leave can last (but Statutory Sick Pay is only payable for up to 28 weeks per year), provided the absence is genuine.
Statutory Sick Pay (SSP) is becoming more accessible, with: it now being paid from day one (instead of from day four) and there no longer being a minimum earnings requirement.
SSP is paid at a rate set at the lower of £123.25 per week or 80% of average weekly earnings
For the first seven days of absence, employees can self-certify their illness. After that, employers may require medical evidence, such as a fit note.
Many employers also offer Occupational Sick Pay, which should be clearly set out in the employment contract or a relevant policy.
During periods of sickness, annual leave continues to build up. Where an employee is unable to take their holiday due to illness, it can be carried over into the next leave year.
How much annual leave are workers entitled to?
Workers are entitled to a minimum of 5.6 weeks paid annual leave each year. This is made up of 4 weeks under the Working Time Regulations, together with an additional 1.6 weeks to reflect public holidays.
All workers, including part-time employees, are entitled to a pro-rated equivalent based on their working pattern.
The distinction between the 4 weeks and the additional 1.6 weeks is important, particularly when it comes to carry-over and holiday pay. The 4-week element must be carried over where a worker is unable to take it, for example due to sickness or family-related leave.
There is no automatic right to take bank holidays off. Employers may choose to include them within the 28-day entitlement or offer them in addition.
Employers must also ensure accurate record keeping and correct holiday pay, as both of these requirements fall within the enforcement remit of the Fair Work Agency.
What are the rules of Maternity Leave?
Employees who are pregnant have a day one right to take maternity leave, made up of 26 weeks of Ordinary Maternity Leave and 26 weeks of Additional Maternity Leave. This distinction is important, particularly for return-to-work rights.
Maternity leave can start at any time from 11 weeks before the expected week of childbirth. There is also a compulsory period of leave immediately after birth which is two weeks in most cases, or four weeks in certain sectors. Employees must meet the relevant notice and information requirements.
These employees will also be entitled to Statutory Maternity Pay (SMP) if they have been employed for at least 26 weeks by the 15th week before their due date.
SMP is payable for up to 39 weeks. With the first six weeks being paid at 90% of average weekly earnings and the remaining 33 weeks are paid at the lower of £194.32 or 90% of weekly earnings.
During maternity leave, annual leave continues to build up and all contractual benefits (other than pay), remain in place. Employees may also agree to work up to 10 Keeping in Touch days.
After Ordinary Maternity Leave, employees have the right to return to the same job and after Additional Maternity Leave, they are entitled to return to the same job where reasonably practicable, or to a suitable alternative role on no less favourable terms.
What are the key rules around Paternity Leave?
Paternity leave is expanding under the Employment Rights Act 2025, introducing a day one right to take paternity leave for eligible employees where a child is born or placed for adoption on or after 6 April 2025. Employees can take either a single two-week block or two separate one-week blocks, at any time within 52 weeks of the birth or placement.
Like SMP, Statutory Paternity Pay remains subject to a 26-week service requirement and is paid at the lower of £194.32 or 90% of average weekly earnings.
When does adoption leave apply and who qualifies?
It applies where a child is placed through an adoption agency, in fostering arrangements leading to adoption, or certain surrogacy situations. Private adoptions do not qualify.
Eligible employees have a day one right to adoption leave, consisting of 26 weeks of Ordinary Adoption Leave and 26 weeks of Additional Adoption Leave. However, Statutory Adoption Pay for this leave is only available to those with 26 weeks of employment.
Adoption leave can begin up to 14 days before the expected placement date. During leave, employees benefit from the same protections as those on maternity leave, including the preservation of contractual benefits and similar return-to-work rights.
How does shared Parental Leave work?
Shared Parental Leave allows parents to share up to 50 weeks of leave and up to 37 weeks of pay. This is because the birth mother or primary adopter must take the compulsory two-week period of leave, after which the remaining entitlement can be shared.
Shared Parental Leave is available if one parent, who is eligible for maternity or adoption leave, chooses to curtail their full entitlement and both parents also meet the relevant eligibility requirements.
To qualify:
- The birth parent or primary adopter must be entitled to maternity or adoption leave
- That parent must formally curtail their entitlement
- Both parents must meet SPL eligibility
Shared Parental Pay is available for up to 37 weeks, subject to service and earnings criteria.
As of April, paternity leave can be taken in addition to Shared Parental Leave, increasing flexibility. However, this remains complex particularly due to the detailed notice requirements, curtailment rules and calculations that employers must manage carefully.
What is Parental Bereavement Leave?
Parental bereavement leave applies where a child dies under the age of 18 or there is a stillbirth after 24 weeks of pregnancy. It is available not only to birth parents, but also to adoptive parents, intended parents in surrogacy arrangements, individuals who lived with the child and had parental responsibility, and partners in an enduring family relationship.
This is a day one right of two weeks of leave per child. The leave can be taken as a single two-week block or as two separate one-week blocks and must be taken within 56 weeks.
The notice requirements are deliberately flexible, reflecting the circumstances, and employers cannot require extensive evidence. Statutory pay is available but is subject to service and earnings requirements.
What is Parental and Emergency Time?
Unpaid parental leave is a day one right, allowing employees to take up to 18 weeks of leave per child. This can be taken at any time up to the child’s 18th birthday, giving flexibility to manage longer-term childcare needs.
Employees are also entitled to time off for dependants. This is intended to deal with short-term or emergency situations, such as a dependant’s illness, a crisis, or an unexpected care issue. The purpose is to allow employees to make immediate arrangements rather than provide ongoing care.
What other types of Statutory Leave should employers be aware of?
There are a number of other statutory rights that employers should be aware of. These include jury service leave, time off for public duties, trade union activities, and health and safety related duties. Employees should not be treated unfavourably for exercising these rights.
What types of Non-Statutory Leave might employers offer?
Many employers also offer non-statutory forms of leave to support employees in a more flexible and supportive way. This can include:
- General compassionate leave
- Bereavement leave for non-parents
- Fertility treatment support
- Menopause-related support
- Wellbeing initiatives or leave
What new Day One Leave Rights are emerging?
There is an increasing shift towards day one rights in employment law. This includes statutory paternity leave, unpaid parental leave, and Bereaved Partner’s Paternity Leave. These changes reflect a move towards making key family-related rights available from the start of employment, rather than requiring a qualifying period.
Who qualifies for Bereaved Partner’s Paternity Leave?
Bereaved Partner’s Paternity Leave is a new right to time off following the death of a child’s mother or primary adopter within the first year of the child’s life or placement.
This applies to:
- The father of the child
- The spouse or civil partner of the mother or primary adopter
- Primary adopter with responsibility for upbringing
The notice requirements are deliberately flexible, recognising the circumstances in which the leave is taken and ensuring that employees are not required extensive evidence at a difficult time.
Employment law experts
If you have any questions regarding this webinar, you can get in touch with a member of the team on 01202 499255 or by filling in the form at the top of the page. We offer all new clients a free initial chat.
In case you missed this month’s briefing you can sign up to our mailing list here.
Chris’ next Coffee Break Briefing will take place on Wednesday 6th May where he will discuss Probation Periods and the New UD Qualifying Period.
Comments