“I have an employee who has asked whether they are allowed to carry over parental leave in the same manner as annual leave if they are unable to take it due to being on maternity leave. Is carry over of parental leave allowed in this situation?” Background Under section 76 of the Employment Rights Act 1996 (ERA 1996) and the Maternity and Parental Leave etc Regulations 1999 (MAPLE 1999), SI 1999/3312, reg 13 parents of a child (whether born to the parents or adopted) are entitled to take up to 18 weeks of unpaid leave to care for that child at any time before the child’s 18th birthday (MAPLE 1999, SI 1999/3312, reg 14). Each parent is entitled to the full 18 weeks, making a total of 36 weeks available but there is no provision for transferring the entitlement between parents. Eligibility To be eligible for parental leave the parent must: be an employee and have worked for the employer for 1 year or more They must have parental responsibility for the child. This means they must be named on one of the following: the child’s birth certificate the child’s adoption certificate a parental order, for surrogacy a legal guardianship Statutory entitlement There is a specific right under the Working Time Regulations 1998 (WTR 1998), SI 1998/1833, regs 13(14) and 13A(7A) to carry over the statutory paid holiday entitlement that the worker is unable to take as a result of taking maternity leave or other statutory leave. Furthermore, under MAPLE 1999, SI 1999/3312, Sch 2, para 8 an employee cannot take more than four weeks’ leave in respect of any individual child during a particular year (it must be taken in blocks of weeks). A year for these purposes is usually a period of 12 months beginning on the date on which the employee first became entitled to take parental leave in respect of the child in question. There is no exception to this provision in respect of untaken leave from a previous 12-month period. Note however, that there are no other provisions in MAPLE 1999, SI 1999/3312 (or otherwise) specifying when the leave must be taken up until the child reaches 18, allowing for far more flexibility in planning when and how to take parental leave. Given that a parent may take parental leave at any time before the child’s 18th birthday, it is difficult to envisage a situation where an employee is unable to take their parental leave entitlement due to being on maternity leave unless the woman: has parental leave still to take as her child (child A) approaches their 18th birthday is then on maternity leave with another child (child B) until after the child A’s 18th birthday Can the employer change leave dates? Employers cannot refuse or completely cancel parental leave. They can postpone it if it’s going to cause problems at work, for example if there’s an important deadline. They can postpone it for up to 6 months after the date the employee originally asked for. The employee must be able to take it before their child’s 18th birthday. If the employer needs to postpone parental leave, they must write to the employee within 7 days of their request to: explain why the leave needs to be postponed give other suitable dates after consulting with the employee Conclusion As outlined above an employee cannot carry over any unused statutory parental leave during maternity leave. Whilst employers do have rights to potentially change leave dates in limited circumstances as explained above, the company should exercise caution around this generally as employees have protection against any detriment/dismissal as a result of seeking to take parental leave. As always, this advice is general in nature and will need to be tailored to any one situation. As an RMI member you have access to the RMI Legal advice line, as well as several industry experts for your assistance. Should you find yourself in the situation above, contact us at any stage for advice and assistance as appropriate. Motor Industry Legal Services Motor Industry Legal Services provides fully comprehensive legal advice and representation to UK motor retailers for one annual fee. It is the only regulated law firm in the UK which specialises in motor law and motor trade law. MILS currently advises over 1,000 individual businesses within the sector as well as the Retail Motor Industry Federation (RMI) and its members.