Parental Leave Tutorial
In this tutorial we look at parental leave from an employer's perspective
We examine each of an employer's obligations under the Act, in the order
they are likely to arise. These are
Next we look at what to do when the employee goes on parental leave
We look at issues arising while the employee is on parental leave. These are
up to date version of the Act
is published on this website. We link to relevant sections throughout this tutorial.
Elsewhere on this website are assembled a number of
FAQ's by the Employment Relations Service.
Parental leave legislation
All legislation relating to parental leave is in the Parental Leave and
Employment Protection Act 1987.
This Act has been modified many times over the years, with the last amendment
being in June 2002.
We have published
our own copy
on this website,
and another copy exists on the
Public Access to Legislation Project website.
Both copies are up to date, and include all amendments.
allows many procedural issues to be introduced by way of regulations - that is,
without debate in Parliament.
Current regulations are the Parental Leave and Employment Protection Regulations
2002. We have not published the regulations on this site, but most of the forms
referred to in this tutorial are designed by the Employment Relations Service,
in accordance with the regulations.
The regulations are published on the
Public Access to Legislation Project website.
What is parental leave
Parental leave is time off work available by law to new parents.
The leave is to provide employees with the opportunity to care for their
newborn baby or an adopted child under five years.
There is a tax funded payment available to parents.
Who is eligible for parental leave
You are required to provide unpaid time off work for an employee who, at the
expected date of birth or adoption, will have worked for you for
At least 12 months, and who has not taken parental leave in the 12 months
before the expected date of birth or adoption, and
An average of 10 hours per week, on the basis of at least one hour every week
or 40 hours every month. If the employee works an irregular employment pattern
the normal pattern of hours over the period is used to establish the average hours.
Where there is a desire to share the leave between partners, both of them must
meet the two eligibility tests above.
The Employment Relations Service of the Department of Labour say in many of their
"It is important to be aware that it is a breach of the Parental Leave and
Employment Protection Act, and the Human Rights Act, to discriminate against a
woman on the grounds of pregnancy"
We can find no specific reference to discrimination in the Parental Leave Act,
but are sure that their advice is correct.
The Parental Leave Act is very specific about procedures taken when an
employee becomes pregnant - that is the purpose of the Act. If these procedures
are not followed, you have not discriminated against the employee - you have
contravened the Parental Leave Act.
Discrimination is more likely to occur when recruiting staff. A detailed discussion
of discrimination is outside the scope of this tutorial, but be aware of the issue
when interviewing staff.
For example, when interviewing a female worker, you would be most unwise to ask
"Do you intend to have children in the next few years?"
Employee requests for information
Until an employee has given written notice that they intend to take parental
leave, there is nothing in the Parental Leave Act that requires an employer to advise an
employee of their rights under the Act.
In spite of this, many employers may choose to do so.
By far the best solution is for the employee to call
Industrial Relations InfoLine
0800 800 863
Formal advice from an employee
The parental leave process is initiated by an employee giving written notice of
their intention to take leave, as required by
of the Act.
The Employment Relations Service has sample letters
on their website for this purpose.
Within 21 days of receiving written notice of an employee's intention to take
parental leave, an employer is required to give the employee two forms, both of
which must be set out in the manner prescribed by the Department of Labour.
The first form is required by
, in which you are to state whether the employee is entitled to parental leave,
whether their job can be kept open, etc.
Full details are best gleaned by reading
, and also by downloading the
prescribed form PDF 13KB.
The second form is the requirement of
to notify the employee of their entitlement to a taxpayer funded payment, and
downloaded here PDF 39KB.
Taxpayer funded paid parental leave scheme
This scheme is covered by
of the Parental Leave Act.
The purpose is to entitle certain employees to up to 14 weeks of parental
leave payments out of public money when they take parental leave from their employment
in respect of a child.
places responsibility for applying on the employee, and makes it obligatory for
an employer to fill in certain parts of the application form when asked to do so.
To receive paid parental leave, the employee must complete the form and send it
to the IRD before they either resign whilst on parental leave, or return from
work after parental leave.
An employee must get an
IR880 paid parental leave application form [PDF 201Kb]
, fill in their part, then give it to the employer to complete.
If the employee wants to transfer some entitlement to a partner,
they complete an
IR881 paid parental leave transfer form [PDF 127Kb]
After the employer has completed their part of the form, the employee sends
the form to the IRD.
Written notice whether job can be kept open
Within 21 days after the beginning of an employee's parental leave,
requires an employer to give written notice indicating whether or not the job
can be kept open.
There is a form for when a job can
be kept open
, and another for when the job cannot be kept open
Be warned that if you claim a job cannot be kept open, and an Employment Tribunal
decides it could have been, you may face a claim for constructive dismissal.
Holiday pay when going on parental leave
A staff member may ask to take holidays before taking their parental leave.
If so, handle exactly as you would for an employee who is continuing their
Under no circumstances are you to make a holiday payment as you would for an
employee terminating their employment.
If, at a later date, the employee claims unjustified or constructive dismissal,
it will not help your case if it can be shown you paid holiday pay as you would
for an employee terminating their employment.
Employer Monthly Schedule
When the employee goes on parental leave, do not enter a finishing date
on the employee record.
If a finishing date is entered, it will be shown on the next schedule sent to
Again, if at a later date the employee claims unjustified or constructive dismissal,
it will not help your case if it can be shown that you sent a schedule to the IRD
that showed a finishing date for the employee.
Employing a temporary replacement
of the Act states
Where a temporary employee is employed to replace an employee who is on parental leave, the employer
shall, before employing the temporary employee, inform the temporary employee in writing
(a) That the temporary employee is being employed on a temporary basis in the place of an
employee who is on parental leave; and
(b) That the employee may return to work, in accordance with
of this Act, before the
date on which the employee is required to return to work at the end of the parental leave.
Public holidays after leave commenced
provides for special treatment of public holidays that fall within 14 days after
an employee goes on parental leave.
If a public holiday falls more than a fortnight after an employee goes on parental
leave, no payment is required.
For every public holiday day that falls within the fortnight, you are required to pay
a percentage of a days wages.
The percentage is the number of days the employee was not on parental leave in the
fortnight preceding the public holiday.
In other words, if a public holiday falls exactly a week after going on parental leave,
you are required to pay half a days wages for that day.
The above is an over simplication of the exact requirement. Full details are
Holiday pay during and after parental leave
provides a unique method for payment of annual leave either during a period
of parental leave, and in the 12 months following an employee's return from
The Holidays Act
requires that holiday pay be paid by comparing average earnings with the current
daily rate, and taking the greater value.
Section 42(2) of the Parental Leave Act
overrides this section of the Holidays
Act, and provides instead that for employees who have taken parental leave, only
the average earnings are used,
meaning that an employer is effectively not required to accrue holiday pay whilst
an employee is on parental leave.
Put another way, whilst the employee still accrues the same entitlement to annual
leave in terms of the number of days, when these days are paid they are at a lower
As an extreme example, say an employee took 52 weeks of extended leave as
Part 3 of the Act.
On return, they are immediately entitled to 4 weeks annual paid holidays for
the year not worked. The payment is three weeks multiplied by the average
weekly earnings, which is zero.