Knowledge

Jersey's new parental leave regime, which collated maternity, adoption and paternity leave into one generic term, "parental leave", was introduced on 28 June 2020. We are now 12 months on so we thought we would take the opportunity to review the regime and highlight some of the important and perhaps lesser known elements of the regime.

Parental leave – the right: did you know?

• The entitlement vests in each "parent" when the child is born or placed for adoption, and provides each parent with up to 52 weeks after the birth or adoption of a child, where "parents" are defined as mothers; fathers and/or persons with the main responsibility for bringing up the child; adoptive and surrogate parents.

• It does not cover parents who foster children.

• There is no qualifying period. All employees are entitled to 52 weeks parental leave from the first day of their employment.

• The entitlement is not transferrable. For example, a mother takes 26 weeks of parental leave and then resigns from her employment. She cannot then seek to claim the remaining 26 weeks leave from her new employer.

• The 52 weeks of parental leave can be taken in up to three blocks of leave over a 2 year period but an employee must agree with their employer the dates and duration of each period of parental leave before the birth or placement of their child. Once agreed, the employee has no right to request a change to these dates.

• Parental leave operates on a 'book it or lose it' basis. If an employee agrees 3 blocks of parental leave amounting to 26 weeks in total, they have no entitlement to book a further 26 weeks at a later time.

Parental leave – pay: did you know?

• Each parent is entitled to 6 weeks' pay at their full salary following the birth or placement of their child. This is paid by the employer and must be taken by the mother immediately after birth, and within the first 12 months for the other parent. 

• Parents are entitled to a total of 32 weeks parental allowance from the States of Jersey Social Security department. Each parent is entitled to 6 weeks – which the mother must take immediately following the birth and the other parent at any time within the two years following the birth/adoption. The remaining 20 weeks can be claimed by either parent or shared between the parents at any time during the two year period following the birth/adoption and, similarly to parental leave, must be taken in no more than 3 blocks per person.

Parental leave – the period: did you know?

• Parents cannot claim the parental allowance whilst they are working but performing Keeping in Touch ("KIT") days do not affect an employee's entitlement to claim the parental allowance. There is no obligation on an employee to work KIT days but, if they wish to do so, any KIT days worked will not extend the period of parental leave.

• All terms and conditions continue to accrue throughout a period of parental leave, including in respect of annual leave and statutory public holidays. This entitles employees to accrue paid leave during all periods of parental leave (whether paid or unpaid). It is important that employers have clear policies on leave roll-over (i.e. employees can roll over up to 5 days annual leave into the next holiday year) and ensure that employees are given the opportunity to take any accrued annual leave or roll it over at the end of a holiday year.

Parental leave – completion: did you know?

• An employee has the right to elect to return to work earlier than their agreed date subject to giving no less than 42 days written notice. An employer must take all reasonably practicable steps to accommodate that request which includes considering the financial, administrative and other resources available to the employer, the nature and size of the business and any remaining periods of booked parental leave. In reality, the circumstances in which an employer can decline a request are likely to be limited.

• When engaging a contractor to replace an employee on parental leave, it is important to define the "Term" of any fixed term contract by reference to the earlier agreed return date of the incumbent employee, or such earlier date resulting from a request from the incumbent to return to work made in accordance with their statutory rights.

• If an employee resigns during their period of parental leave, an employer cannot recover the 6 weeks statutory parental leave payments, but an employer can insert wording in employment contracts and policies, which enable the recovery of any paid parental leave period above the statutory minimum.

• Whilst all employees have the right to return from a period of parental leave to the job they were employed in immediately before leave without any affects to their seniority, pension or other benefits and on terms no less favourable than those which would have applied if they had not been absent, it is OK to include an employee on parental leave in any redundancy process, and unlike Guernsey, there is no preference for parents on parental leave.

Breastfeeding: did you know?

• Employees have a right to paid breaks for the purposes of breastfeeding and expressing milk, but the entitlement extends only to the period spent breastfeeding or expressing. It does not, for example, include any travel time to and from the baby.

• As at the date of this briefing, there have been no claims made or determined by Jersey's Employment and Discrimination Tribunal in relation to any breach of the parental leave laws (this includes any claim regarding breastfeeding).

If you would like any further information, please get in touch with your usual Bedell Cristin contact or one of the contacts listed.