Maternity and parental leave: One year on

The
Government has announced plans to change the Regulations 1999 provisions. Sue
Nickson sets out the present rights to see what it has to build on

Maternity rights legislation was overhauled as part of the widespread
changes made by the Employment Relations Act 1999, amending the Employment
Rights Act 1996 (ERA), and implementing the Maternity and Parental Leave
Regulations 1999 (the Regulations). The amendments were intended to simplify
this complex area of law and to a certain extent have been welcomed as
providing clarification on many points. On 7 December 2000 the Government
announced plans to change these provisions yet again. An overview of the
present rights is set out here to see what the Government has to build upon.

Maternity Leave

The provisions relating to maternity leave are now found in sections 71-75
of the ERA and in the Regulations. All employees are entitled to 18 weeks maternity
leave, this is known as ordinary maternity leave (OML). An employee with one
year’s service as at the 11th week before the expected week of childbirth (EWC)
will also qualify for additional maternity leave (AML). This entitles her to
take leave of up to 29 weeks from the date of birth. As an employee may opt to
begin her ordinary maternity leave up to 11 weeks before the EWC this provides
a maximum entitlement of 40 weeks leave. There are two circumstances in which
an employee will not be able to choose when she begins her maternity leave.
Early childbirth will automatically begin maternity leave as will any absence
due to a pregnancy related reason in the six-week period immediately preceding
the EWC.

Terms and conditions during Maternity Leave

During the ordinary maternity leave period the employee is entitled to
receive all their normal contractual benefits with the exception of pay or
wages, for example, she will usually be able to retain her company car during
the 18 weeks. The employee’s normal pay will be replaced with statutory
maternity pay. If contributions are made to the employee’s pension then they
should be continued as at the notional rate of her normal salary.

During the additional maternity leave period the regulations state that the
contract will remain in existence however the terms and conditions that apply
during this period are limited. The employee will have the benefit of the
implied obligation of trust and confidence; notice of termination provisions;
redundancy payment provisions and disciplinary and grievance procedures. She
will be bound by the implied obligation of good faith and any terms relating to
notice of termination; disclosure of confidential information; the acceptance
of gifts or other benefits or participation in any other business.

Holidays and Maternity Leave

As stated, the contractual benefits except pay will continue to accrue
during the ordinary maternity leave period. This will include accrual of
contractual leave. During the additional maternity leave period there is no
right to accrue contractual leave. There is, however, the need to comply with
the minimum annual leave provisions contained in the Working Time Regulations
1998 which state that all employees will be entitled to at least four weeks annual
leave. The employee’s contractual leave entitlement should be calculated,
excluding the additional maternity leave period, then an adjustment made to
ensure that the annual leave still complies with this minimum entitlement.

Maternity Pay

The provisions relating to statutory maternity pay (SMP) are contained in
the Social Security Contributions and Benefits Act 1992 and the Statutory
Maternity Pay (General) Regulations 1986 (SMP Regs). To qualify for SMP the
employee must have 26 weeks service as at the qualifying week, ie the 15th week
before the EWC and average earnings in the eight weeks up to and including this
week over the lower earnings level for National Insurance contributions. If she
meets the qualifying conditions the employee will be entitled to receive 90 per
cent of her normal earnings for the first six weeks of the maternity leave
period and then 12 weeks at a flat rate of £60.20 (reviewed annually in April).
The SMP Regs provide that an employee’s normal earnings should be calculated as
at the qualifying week but that back dated pay rises should be taken into
account also. In the case of Alabaster v (1) Woolwich plc (2) Secretary of
State for Social Security, 2000, The Times 9 April, the Employment Appeal
Tribunal held that the SMP Regs did not go far enough to comply with the
rulings of the European Court of Justice on maternity pay. In effect the SMP
Regs should not ignore pay rises that take place at any time between the
qualifying week and the end of the maternity pay period. This decision has been
appealed but if confirmed it will mean that the SMP Regs will have to be
amended.

Paid time off for antenatal care

The employee’s right to paid time off is contained in sections 55 to 56 of
the ERA. There is no minimum service qualification for the employee to acquire
this right nor does it matter if the employee’s job is temporary or permanent.

Antenatal care is not defined by the ERA whether it includes relaxation or
parent-craft classes is a matter of some contention. In the case of Gregory v
Tudsbury, 1982, IRLR 267 the tribunal accepted, with supporting medical
evidence, that the relaxation classes the employee attended were an essential
part of her antenatal care. Mrs Gregory’s employer allowed her time off to
attend the appointments but refused to pay her for that time. The tribunal held
that by allowing Mrs Gregory time off the employer had accepted that it was
reasonable and therefore should have paid her. However in Bateman v Flexible
Lamps Ltd, ET Case No. 3204707, a tribunal refused to accept that antenatal
care would include parent-craft classes, describing such as merely optional.
Therefore, it remains an area of some uncertainty. The right is to time off
during the employee’s working hours. An employer is not entitled to rearrange
the employee’s normal working hours in order to avoid the employee taking time
off.

An employee who is permitted to take time off under section 55 is entitled
to be paid at the appropriate hourly rate for the period of absence necessary
to enable her to attend the appointment. An employee must produce a certificate
of pregnancy and appointment card if requested to do so. If she fails to do
this she will not be entitled to pay for any time off allowed.

Health of the pregnant worker

The EU Pregnant Workers Directive makes provision for the health and safety
of pregnant workers. An employee who is pregnant, or who has recently given
birth, or who is breastfeeding may, as an ultimate measure, have to be
suspended from work on health and safety grounds if continued attendance might
damage her, or her baby’s health.

Under the Management of Health and Safety at Work Regulations 1999 employers
of women of childbearing age are required to carry out a risk assessment on an
employee’s role. If the role poses a risk to either the new or expectant mother
or baby’s health, or if the employee advises them that such a risk does exist
(for example, on advice from their GP) the employer should take steps to reduce
or remove the risk. The obligation would include temporarily adjusting the
working conditions and/or hours of work; offering suitable alternative work, or
suspending her from work for as long as is necessary to protect her safety or
that of her child.

Alternative work must be suitable in relation to the employee and
appropriate in the circumstances for her to do and, the terms and conditions
applicable must not be substantially less favourable than those which apply to
her performing her normal role.

If suspended the employee is entitled to full pay during the period of
suspension in accordance with section 68 of the ERA unless she has unreasonably
refused a suitable alternative offer.

Notification procedures

The same notice provisions apply to both OML and AML. An employee has to
give 21 days notice confirming her pregnancy, the EWC, and her intended start
date of maternity leave.

The notice need not be in writing unless the employer so requests. If an
employee intends to return at the end of the OML or AML she need do nothing
more. If, however, she intends to return earlier than the end of the maternity
leave period to which she is entitled she is required to give 21 days notice.
In the event that she does not the employer will be able to postpone her return
date for up to 21 days.

If the employee is entitled to AML the employer may request confirmation
that she will be returning at the end of the AML. The request should be sent no
earlier than 21 days before the end of the OML. The letter should explain how
she can work out when her AML will end and ask for confirmation of the child’s
date of birth and whether she intends to return at the end of the AML. It
should also warn the employee that if they fail to reply within a period of 21
days she may be penalised.

She will not lose her right to return but she will lose statutory protection
against action that may amount to a detriment and her right to claim automatic
unfair dismissal.

The right to return

Following OML the employee is entitled to return to the job in which she was
employed before her absence with the benefit of all her rights as if she had
not been absent. Failure to allow this for a reason connected to her maternity
leave will be automatically unfair dismissal.

Following AML the employee is entitled to return to the same job, or if it
is not reasonably practicable for the employer to permit her to return to that
job, to another job which is both suitable for her and appropriate for her to do
in the circumstances. Again failure to allow her to return will be
automatically unfair dismissal.

Parental Leave

The right of employees to take parental leave is contained in the ERA and
the regulations. The right is to take up to 13 weeks’ unpaid leave in respect
of each child, for whom the employee has parental responsibility, for any
purpose connected with the care of that child. It is subject to a requirement
of one year’s qualifying service. The entitlement is in addition to the right
to take maternity leave. The leave need not be taken as one continuous period,
but must be taken by the child’s fifth birthday, the fifth anniversary of the
adoption of the child, or, if the child is disabled, by their 18th birthday.

Parental leave may be taken by both parents of any child born or adopted on
or after 15 December 1999, ie when the Regulations were implemented. The leave
also extends to a person who is not a natural parent of the child, but who has
parental responsibility under the Children Act 1989 (or its equivalent in
Scotland).

The TUC have challenged the requirement that the child must be born or
adopted on or after 15 December on the basis that it does not properly
implement the Parental Leave Directive. The matter has been referred to the
European Court of Justice.

Workforce/collective agreement

It was decided to leave a degree of flexibility regarding the administration
of the leave, to allow scope for employers to agree a method of implementation
with their workforce.

Agreements should be in writing, in the form of collective or workforce
agreements, incorporated into the contract of employment. It has to be reviewed
within a five-year period. It must apply to the entire workforce or to the
members of the relevant group of workers, who perform a particular function or
belong to a particular department. It must be signed by all members of the
group, or by elected representatives. This means that employers can agree with
their workforce how much notice must be given when an employee wishes to take
leave, and whether leave must be taken in blocks of a particular period of
time. They may also agree on whether certain contractual benefits will remain
available to employees during the period of leave. An agreement cannot,
however, give rights that are less favourable than those given by the statute.
If there is no such agreement then parental leave must be administered in
accordance with the default provisions.

The default provisions

The default provisions require that an employee give at least 21 days’
notice of their intention to take parental leave; that it should be taken in
blocks of one week, and that no more than four weeks’ leave can be taken in any
year.

An employer may postpone the parental leave for up to six months if the
employee’s absence will cause undue disruption to the business. It would be
necessary to advise the employee of the postponement within seven days of
receiving the notice to take leave giving details of the new dates.

This right to postpone however does not apply when an employee gives notice
to take the leave as at the date of birth or adoption.

There are more generous provisions for parents of disabled children. They
are not required to take leave in blocks of one week, and leave can be taken up
to the child’s 18th birthday rather than its fifth birthday.

The terms and conditions that continue during the period of parental leave
are the same as those that apply during the AML period.

Sue Nickson is partner and national head of employment law at Hammond
Suddard Edge

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