Is it illegal for employment contracts not to include paternity or maternity leave?

When it comes to employment contracts or written statements of particulars before an employee begins work at a company, there are certain pieces of key information that must be included. In this guide, we will be exploring whether employment contracts legally require maternity and paternity leave to be written into them. This will help to ensure that businesses receive relevant advice for employers and are adhering to the necessary employment law requirements.

Maternity and paternity leave entitlements

If you’re an employee and you become pregnant, you are legally entitled to up to a year (52 weeks) of maternity leave, regardless of how long you have worked for the company. This includes 26 weeks of regular maternity leave and 26 weeks of additional maternity leave.

Your employment rights are protected whilst you’re on maternity leave, for example your pension contributions will remain the same. If you decide to return to work at the end of your leave, you can request to your employer for flexible working arrangements, either temporarily or for a longer period. Also, if you are made redundant while on maternity leave, you will have more rights.

If you’re going to be a father or you are the partner of someone who is pregnant, you might have the right to paternity leave, including if you’re a same-sex couple. You could be eligible for 1-2 weeks of paid paternity leave, shared parental leave and pay, and paternity pay.

Shared parental leave is an option where you can share parental leave and pay with your partner. It allows parents to spend more time together during the early stages of a child’s life and offers greater flexibility for them to choose when they want to go back to work.

Both leave and pay can be shared after the first 2 weeks of your child’s birth. So, up to 50 weeks of leave and 37 weeks of pay can be shared between the parents.
The leave can be taken by both parents at the time so they can spend time together at home with the baby.
You have the option to take all of the shared leave in one go or take it in smaller chunks and work in between the time off.

Does an employment contract have to include maternity and paternity leave?

Since the Employment Rights (Employment Particulars and Paid Annual Leave) (Amendment) Regulations 2018 came into effect in April 2020. Employers must provide a written statement terms (if not a full employment contract) that is given on or before the first day of employment. This is instead of the previous rule that the statement was provided within two months of the employment starting.

The information that legally must be given in the written statement includes:

The days of the week the employee is required to work, whether the working hours can vary, and how that variation is determined.
Details regarding all remuneration and benefits;
Any entitlement the employee has to training provided by the employer including if it is mandatory and/or the worker has to pay for it;
A probationary period if there is one;
And any paid leave to which the worker is entitled, including maternity or paternity leave.

This means that when a new employee is provided with a written statement or an employment contract must include any paid leave (apart from holiday and sick leave) that the employee is entitled to take, which maternity and paternity leave is part of. Other common types of leave that fall under paid leave entitlements are other types of paid statutory family leave like adoption leave, shared parental leave, and parental bereavement leave. There is also:

Time off for trade union activities
Bereavement or other compassionate leave
Paid sabbaticals or career breaks
Paid time off for jury service

If you need any further support drafting and updating written statements or employment contracts, you can seek professional and relevant HR advice for employers from our team at Employment Law Services (ELS) LTD.

Conclusion

In response to the main question of this article, yes it would be illegal for an employment contract or written statement to not include paternity or maternity leave. All employees are entitled to take family-related leave if they satisfy the statutory requirements. If you’re an employer and need support creating employment contracts when you’re hiring new staff, Employment Law Services (ELS) LTD can help.

We provide specialist employment law help for employers that ensures they stay on top of all employment legalities in an efficient and affordable manner. Contact us today if you have any questions or book a free consultation through our website.