21st June 2021

How to deal with family friendly rights

Dealing with family friendly rights can be challenging for employers and it is important that the processes are correct. For some top takeaway tips on how to deal with some of these rights, continue reading!

Pregnant women and risk assessments

Once they know that an employee is pregnant, all employers require to carry out a suitable and sufficient risk assessment. Pregnant women are classified as clinically vulnerable, so it is important that health and safety is maintained.

Some tips for employers:

  • Conduct the risk assessment via video call if the employee is working from home.
  • Make sure that the findings of the risk assessment are recorded.
  • Think about creating your own risk assessment document. The Royal College of Obstetricians & Gynaecologists and the Royal College of Midwives have great guidance on this.
  • Inform the employee of the risk, or risks, and inform them of the action being taken.
  • If risks are identified, do all that is reasonable to either remove or prevent the employee’s exposure to any significant risk found.
  • Assess how best to reduce the risk or risks posed to the employee and make every effort to avoid the risk.
  • If the risk cannot be avoided, the next steps to be taken are (and in this particular order):
    • Temporarily alter the employee’s working hours or conditions;
    • Offer the employee suitable alternative work; then
    • Suspend the employee on maternity grounds. This is a last resort.
  • Have a clear, well-worded policy.

Shared Parental Leave

The Shared Parental Leave Regulations 2014 set out the scheme used by employees who can take Shared Parental Leave, and the criteria is different depending on whether it is a birth or adoption situation. The rules regarding Shared Parental Leave are complex but in short, employees who wish to take Shared Parental Leave require to provide their employer with 8 weeks’ notice before the start date chosen for the first period of Shared Parental Leave to be taken by each parent. But what if the baby is born prematurely and the parents have not managed to provide their employer with the required notice?

Some tips for employers when dealing with this scenario:

  • Ensure that you receive the notice as soon as reasonably practicable after the baby’s birth.
  • Check whether the notice requests a period of leave with a commencement date within 8 weeks beginning with their child’s birth.
  • You do not need to request evidence. You should consider whether there is any value in doing so.
  • There is no obligation to check the accuracy provided in respect of a spouse/partner/civil partner’s employment.
  • There is no obligation for the parents’ employers to share information with each other regarding their employee’s Shared Parental Leave if the parents work for different employers.
  • You can ask the name and address of the other parent’s employer and contact them if you wish.

Flexible working requests

All employees with at least 26 weeks’ service have the statutory right to make a flexible working request, not just parents. An employer must deal with a flexible working request in a reasonable manner and inform the employee of the decision within a period of 3 months (or any such longer period as agreed by both the employer and the employee).

Employers can refuse a flexible working request, but only on one of the following grounds: the burden of additional costs; detrimental effect on the ability to meet customer demand; the inability to reorganise work among existing staff; the inability to recruit additional staff; a detrimental impact on quality; a detrimental impact on performance; the employer will have insufficient work during the periods the employee proposes to work; or planned structural changes. The employee can’t then make another request for 12 months.

Some tips for employers:

  • If an employee makes an informal request, do not ignore it. Instead, point out that it does not comply with the statutory requirements and guide the employee on how to comply.
  • Try not to get clever when dealing with flexible working requests. Employers should not leave the employee waiting the full 3 months for the purposes of dragging out matters and then refusing the request.
  • Consider requests fairly and make decisions based on facts and not personal opinion.
  • Have a clear and well-worded policy.
  • Meet with the employee and discuss what their plans are and what their ideal outcome is.
  • Watch out for situations where a flexible working request turns into time off for dependents.
  • Start discussions sooner rather than later, forewarned is forearmed!
  • Obtain as much information from the employee as possible.
  • If agreeing to the request, be sure to set a review date.
  • Consider having a trial period.
  • Make sure to issue a new contract of employment.

Returning to work and breastfeeding

It is important to note first of all that breastfeeding includes not only feeding the baby but also expressing milk. The first concern is health and safety. As mentioned above, an employer is required to assess workplace risks to its employees. This includes employees who are breastfeeding. Accordingly, employers must do what is reasonably practicable in order to control such risks. An employer’s failure to carry out a proper risk assessment for a breastfeeding mother at work is likely to constitute direct discrimination.

Employers should meet with employees whom they know are breastfeeding in order to assess their needs and what would assist them as breastfeeding mothers. Suitable facilities should be provided by the employer so that the employee can rest (including lie down) and take adequate rest and meal breaks. An employer may think ‘we have toilets, these are sufficient’, but think again! A toilet is not considered as a ‘suitable facility’ in these situations.  Although employees do not have a statutory right to time off work for breastfeeding and employers are not required to provide facilities for breastfeeding itself, employers should provide other facilities to aid employees wanting to breastfeed their child at work. This could be a clean, private environment for extracting milk and a fridge for storage. Employers should remove any hazards and attempt to accommodate any requests from employees for time off to breastfeed. A straight refusal may leave employers with an indirect discrimination claim against them. Employers should be aware of sex discrimination and ensure that employees are not treated less favourably purely because they are breastfeeding.

Some tips for employers:

  • Carry out a full and proper risk assessment.
  • Do not instantly refuse any flexible working request made to accommodate breastfeeding.
  • Consider training managers in how to have a good conversation with employees regarding breastfeeding. Perhaps consider appointing a ‘breastfeeding champion’.
  • Consider all requests made by employees relative to breastfeeding. Just because there is no statutory right to some requests, an instant refusal or failure to consider will likely result in a discrimination claim landing on your desk.
  • Consider updating your Privacy Notice if it does not apply to third parties. This will help you if your employee requests that their partner enters the workplace with their child for the purposes of breastfeeding at work.
  • Requesting that an employee breastfeeding at work makes up their time may amount to less favourable treatment.
  • Breastfeeding mothers are not entitled to breaks specifically for breastfeeding, however good practice would be to allow employees more frequent breaks as a reasonable adjustment.
  • Breastfeeding employees are still entitled to their contractual elements.

Time off for dependents

This statutory right allows a reasonable amount of time off to take action which is necessary in consequence of a variety of unexpected or sudden events involving a dependent. What is necessary will depend on the circumstances. The problem though is that the statutory rules do not specify what a ‘reasonable’ amount of time off is. There has been some case law guidance, which states that employers cannot specify a maximum period of time which is reasonable in any one circumstance. However, it is expected that the vast majority of scenarios will constitute a reasonable time period of no more than a few hours or a couple of days at most. Equally, there is no maximum on the number of times that an employer can take advantage of this entitlement.

Some tips for employers:

  • Record, record, record! Every occasion of time off for dependents should be recorded to ensure that any emerging pattern or problem for the employee or the employer is identified.
  • Speak with the employee if a potential problem is spotted. The discussion should take place with a view to finding a solution that works for everyone, i.e. changing working hours or moving the employee to another department with less disruption or no deadlines.
  • Both parents can take time off for dependents at the same time, but you need to take a common-sense approach when considering whether this is both necessary and reasonable.
  • Manage your employee’s expectations – have a clear, well thought out policy with some degree of flexibility.
  • If you suspect that an employee is abusing the time off for dependents right, address this under the disciplinary procedure.

If you require any advice regarding family friendly rights, please contact Blackadders’ Employment Team working in Aberdeen, Dundee, Edinburgh, Glasgow, Perth and across Scotland.

Donna Reynolds, Partner
Employment Law
Blackadders LLP
Blythe Petrie, Trainee Solicitor
Employment Law
Blackadders LLP


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