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What are my employment rights following birth injury?

Employment status, length of service and occupation can all determine what rights you have as new parents. 

Generally, employees with a contract of employment and service over 26 weeks will tend to have the greatest rights but it is always worth checking with your employer in the first instance.

Rights can include:

  • Time off for antenatal appointments (paid)
  • Time off to accompany to antenatal appointments (unpaid)
  • Maternity leave and pay
  • Paternity leave and pay
  • Shared parental leave and pay
  • Parental leave (unpaid)
  • Time off for dependants (unpaid)
  • Flexible working requests
  • Parental bereavement leave and pay

Antenatal appointments

During pregnancy, early issues and complications may be picked up leading to the necessary intervention and support needed.

It is important expectant mothers take the time to attend pre-natal appointments. However, it can be difficult for women to ask their employers for time off, particularly if the appointments fall in their normal working hours.

However, most pregnant employees will have the right to take time off work to attend antenatal appointments for antenatal care and to be paid which cannot be unreasonably refused by the employer.

There is also a separate right for certain employees to take unpaid time offer to accompany a pregnant woman when she attends an appointment for antenatal care, i.e. the father, partner of the pregnant woman.

Maternity leave and pay

A pregnant woman is entitled to maternity leave of up to 52 weeks. This is split into the minimum of 2 weeks immediately following the birth; 26 weeks ordinary leave (including the compulsory leave period) and additional leave which is for a further 26 weeks.

An employee may be entitled to maternity pay, maternity allowance or income-related benefits from the state.

Pregnant women should refer to their employer’s maternity policy and/or the statutory process set out on the gov.uk website for further information.

Premature babies: In the event of an early birth, the employee must inform her employer that she has given birth and the date on which the birth occurred in order for her period of compulsory and ordinary leave to start.

Stillbirth (after 24 weeks duration): If the pregnant employee has not yet commenced her ordinary maternity leave but gives birth to a child after 24 weeks of pregnancy but the child is born sleeping, the woman is still entitled to her maternity leave but will need to notify the employer as soon as reasonably practicable, that she has given birth and the date of the birth.

Neonatal death: Where the baby is born but only lives for a short while, the employee will be entitled to her maternity leave so long as she has complied with her notification requirements.

Paternity leave and pay

Fathers or partners may be entitled to two weeks paternity leave with pay. The right can still apply even in the event of a premature birth, stillbirth (after 24 weeks) and a neonatal death. In addition, they may be entitled to sick leave and pay, compassionate leave and time off for dependants depending on the circumstances.

Shared parental leave and pay

The right to share up to 50 weeks of leave which the mother may otherwise be entitled to as maternity leave.  It may be helpful for parents to have use of this entitlement depending upon their circumstances.

Parental bereavement leave and pay

The government has recently announced that with effect from 6 April 2020, parents who suffer the death of a child will be entitled to two weeks bereavement leave with pay. This can be taken as one week or two weeks within 56 days of the child’s death.

When things go wrong

A birth injury may be apparent very early on or there may be a delay and the child’s late development may be the first signs of a problem. Parents may still be on leave or they may have returned and be outside of the initial leave periods. It can be daunting for parents who are facing a life-changing event.

One option could be parental leave which entitles eligible parents up to 18 weeks unpaid leave up until the child’s 18th birthday. The maximum amount of leave that can be taken at any one year is four weeks.

Either parent, or both may choose to make a flexible working request to alter their working pattern. This could be moving from full-time to part-time, working from home; half day working etc.

There is no right for an employer to agree to a flexible working request but they will need to be aware of possible discrimination issues if they do refuse.

If unsure, please refer to the statutory process set out on the gov.uk website or contact our employment expert Joanne Wright.

Making a Birth Negligence Claim

Our team of highly experienced medical negligence solicitors specialise in birth injury claims and will work with you to gain answers around what went wrong, demanding an apology as well as getting the assurance we need to know that the same mistakes won’t be made again.

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