When staff go on holiday and another team member requests paternity leave, what rights does a company have to postpone the paternity leave request on the grounds that it will leave a department unmanned? Esther Smith, partner at Thomas Eggar, and Martin Brewer, partner at Mills & Reeve, advise.
The question:
One of our employees has requested paternity leave at the same time as two other colleagues are booked on holiday – this would leave our technical helpdesk unmanned at one of our regional offices. I can see that employees can delay/change paternity leave dates but I cannot see that the employer has the right to ask the employee to change the dates if it is operationally impractical. Can you please confirm if we have the right to do this?
Legal advice:
Esther Smith, partner, Thomas Eggar
If the request is for paternity leave (rather than parental leave which is different) the employer has no right to request that the employee postpone their leave. The paternity leave can be altered by the employee as you say, due to the fact that the arrival of the baby cannot be confirmed!
If the employee is requesting parental leave, rather than paternity leave, then the employer can request a postponement of the leave for up to six months.
On a practical level, the only thing you could do is speak with the other employees who have booked holiday to see if they are able to alter their arrangements at all, which seems rather unfair on them but may be the only option if the business cannot suffer the absence of them all at once.
Esther Smith is a partner in Thomas Eggar’s Employment Law Unit. For further information, please visit Thomas Eggar.
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Martin Brewer, partner and employment law specialist, Mills & Reeve
No you cannot use operational need to challenge the right to paternity leave. According to the Paternity and Adoption Leave Regulations 2002 a qualifying employee is ‘entitled’ to take either one or two weeks paternity leave. The entitlement is an entitlement to be absent so there is no way for the employer to prevent this from happening even if it is operationally inconvenient.
Martin Brewer can be contacted at martin.brewer@mills-reeve.com. For further information, please visit Mills & Reeve.
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