In on the act: Maternity Regulations 2002

Expectant mothers whose babies are due from next April will have increased
rights under the Maternity and Parental Leave (Amendment) Regulations 2002.
Emma Peacock, an assistant solicitor in the employment pensions and benefits
group at Stephenson Harwood, outlines the changes

Legal issues

The regulations came into force on 24 November 2002 and will affect
employees whose expected date of childbirth begins on or after 6 April 2003.
Employers must start adapting policies now because notification provisions will
kick in in a few weeks time.

Background

The Green Paper, Work and Parent: Competitiveness and Choice (December
2000), concluded the British economy needed a more flexible labour market. The
Government is introducing a raft of new rights to fit its stated aim of
delivering "a balanced package of support for working parents, at the same
time as reducing red tape for employers".

The Maternity Regulations are the latest issued on family-friendly or
work-life policies and these rights, being introduced under the Employment Act
2002, aim to assist a higher proportion of women to return to work.

Ordinary Maternity Leave changes Ordinary Maternity Leave (OML) will
increase from 18 to 26 weeks and remains the basic entitlement for all women
irrespective of their length of continuous employment.

They will also receive maternity pay for the entire 26 weeks. As currently,
the first six weeks will be at the rate of 90 per cent of their normal wage and
the remaining 20 weeks at £100 per week or 90 per cent of their normal wage
whichever is lower.

New notification requirements

At present an expectant mother must notify her employer of her pregnancy,
the expected week of childbirth (EWC) and the date on which she intends to
start her maternity leave at least 21 days before that start date.

In future, she will have to notify her employer earlier, in or before the
15th week before the EWC. The start of her OML may be changed provided she
gives 28 days notice before the date originally notified or the new date,
whichever is earlier.

There is a new obligation on the employer to respond in writing to the
employee within 28 days of receiving her notification. This response must state
the woman’s expected date of return. A woman who wishes to return earlier than
that date must give 28 days notice to her employer. If the employer fails to
inform her of her expected date of return, she cannot be prevented from
returning early and is protected from detriment if she fails to return on the
due date.

These timings apply unless it is not reasonably practicable – in which case
notice must be given as soon as possible.

Commencement of Maternity Leave

As before, OML may only start 11 weeks before the EWC, but ifa woman is
absent from work wholly or partly because of her pregnancy, OML will start
automatically at the fourth week before the EWC instead of the existing six
weeks. If she gives birth prior to the start of her OML, OML begins on the day
childbirth occurs.

Changes to Additional Maternity Leave (AML)

Additional Maternity Leave (AML) entitlement arises once a woman has been
continuously employed for 26 weeks by the 14th week before EWC and is, as
before, unpaid. AML will be for 26 weeks starting immediately after the end of
OML and so will no longer be calculated in reference to the actual week of
childbirth. A woman is therefore able to take one year’s maternity leave in
total, if entitled.

Contractural terms

As currently with maternity leave, during OML the terms and conditions of
the contract remain in full, including the benefits, apart from the wages.
During AML the contract remains but only the terms relating to:

On the part of the employer:

– Trust and confidence

– Grievance and disciplinary procedure

– Right to notice of dismissal

– Right to a redundancy payment

And, on the part of the employee:

– Notice of resignation

– Confidentiality

– Acceptance of gifts or other benefits

– Participation in another business

Right to return to work

After a period of OML, the woman is entitled to return from leave to the job
in which she was employed before her absence.

After AML, the woman is entitled to return either to the job she was in
before her absence or, if impracticable, the employer has the right to have her
return to another job which is both suitable and appropriate for her in the
circumstances.

Conclusion

The new rights provide for more women to be entitled to longer periods of
maternity leave and the assumption is that the full entitlement will be taken
unless notice of early return is given. The employer may no longer ask if a
woman intends to take AML. However, employers are now entitled to longer notice
before OML will commence. At least now the maternity provisions are becoming
somewhat less complicated although there is always room for improvement.

Need to know points

– Ordinary Maternity Leave entitlement will increase to 26
weeks for all women

– Expectant mothers must notify employers of pregnancy by the
15th week before expected week of childbirth

– Employers must respond in writing within 28 days of this
notification stating the expected date of return

– If she qualifies under changes to Additional Maternity Leave,
a woman will be entitled to take a year’s maternity leave

– After AML leave, a woman is entitled to return to her
previous job, or if impracticable, to another suitable position

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