Q What changes to the maternity leave provisions were made on 1 October 2006?
A The changes affect women with an expected week of childbirth (EWC) on or after 1 April 2007.
Where an employee has an EWC prior to this date, regardless of her length of service, she is entitled to ordinary maternity leave, but must have 26 weeks’ continuous service as at the end of the 15th week before the EWC to qualify for additional maternity leave.
For women with an EWC on or after 1 April 2007 this requirement has been removed, so that all employees who qualify for ordinary maternity leave also qualify for additional maternity leave. This means that they are entitled to 52 weeks’ maternity leave in total, and are able to take advantage of the concurrent increase in statutory maternity pay from 26 weeks to 39 weeks.
The new provisions also mean that an employee on maternity leave can agree to work for her employer for up to 10 days during her maternity leave without bringing her maternity leave period or pay to an end. These keeping-in-touch days are by arrangement between the employer and employee, with the employer having no right to demand that work is undertaken and the employee having no right to be offered such work.
While a woman is not required to forewarn her employer if she intends to return to work the day after her maternity leave ends, she must give notice if she wishes to return to work at an earlier date.
Women with an EWC prior to 1 April 2007 must give 28 days’ notice, but this has been extended to eight weeks’ notice for women with an EWC on or after this date. A woman may change her mind about her return date, provided that she gives at least eight weeks’ notice before whichever is earlier: the date on which she now intends to return or the date on which she had intended to return.
Q As the statutory maternity pay period has been extended to 39 weeks, has the ordinary maternity leave period also been extended?
A To qualify for statutory maternity pay an employee must have 26 weeks’ continuous service into the 15th week before her EWC and average earnings of at least the lower earnings limit for National Insurance purposes. While qualifying women with an EWC prior to 1 April 2007 are entitled to up to 26 weeks’ statutory maternity pay, this has been extended to 39 weeks for women with an EWC on or after this date.
All women with an EWC on or after 1 April 2007 are entitled to 52 weeks’ maternity leave. This consists of 26 weeks’ ordinary maternity leave, followed immediately by 26 weeks’ additional maternity leave. Statutory maternity pay is, therefore, payable for the 26-week ordinary maternity leave period and 13 weeks of the additional maternity leave period.
Q If an employee with an EWC beginning 1 April 2007 gives birth before this date, how many weeks’ statutory maternity pay will she be entitled to?
A The new provisions entitling pregnant employees to 39 weeks’ statutory maternity pay apply to women with an EWC beginning on or after 1 April 2007, regardless of when their baby is born. If her baby is born early, a woman with an EWC on or after this date will still be entitled to 39 weeks’ statutory maternity pay.
Women with an EWC prior to this date are entitled to 26 weeks’ statutory maternity pay, regardless of when their baby is born. If her baby is born late, a woman with an EWC before 1 April 2007 will be entitled to 26 weeks’ statutory maternity pay.
Q Under the new provisions can a woman return to work at the end of ordinary maternity leave without giving notice?
A Once an employee has given notification of the day on which she intends to begin her maternity leave, the employer must respond within 28 days, informing her of the date on which her maternity leave will end. The employee does not need to give notice of her return to work if she returns on the day after the end of her maternity leave, which for all women with an EWC on or after 1 April 2007 is a period of 52 weeks.
If, however, an employee wishes to take only 26 weeks’ ordinary maternity leave – for example, because she wants to guarantee her right to return to the same job – she must give the employer eight weeks’ notice of her return to work because she will be returning to work before her full 52-week leave entitlement has ended.
Q Can an employer contact an employee on maternity leave to ask if and when she intends to return to work?
A The law was previously unclear about the extent to which employers were permitted to contact employees on maternity leave. However, where the EWC is on or after 1 April 2007, there is now a specific statutory provision enabling reasonable contact to be made between employer and employee during maternity leave – for example, to discuss the employee’s return to work – without it bringing the period of maternity leave to an end. Either party is entitled to make reasonable contact.
However, if the employer does contact the employee in these circumstances, the employee is under no statutory obligation to reply. She is entitled simply to return to work at the end of additional maternity leave. If the employee wishes to return early, she must give eight weeks’ prior notice. If the employee does not intend to return to work at all, she is obliged to give the notice of termination required by the contract of employment.
Subject to these notice periods being given where appropriate, there is nothing the employer can do if the employee refuses to confirm on request if or when she intends to return to work.
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For more on the Work and Families Act, turn to page 22
UK mothers to benefit from extended paid maternity leave