Maternity: Brussels gets in the family way

The European Commission has announced its intention to push forward changes to a number of family-related employment rights. These include changes to maternity and paternity rights, and rights relating to care for dependants (see box, right, for a summary of the key proposals and their likely impact on employers).

The proposed maternity-related changes are to be implemented through amendments to the existing Pregnant Workers Directive. At present, UK maternity legislation implements the current version of this directive. But, if all goes according to the commission’s plans, the directive will be amended next year, which will probably mean that UK employers must comply by 2011.

Unenthusiastic

Employers that have spent the past decade dealing with piecemeal changes to family-related laws are unlikely to be enthusiastic about the prospect of more European laws. But it is not the headline proposal for 18 weeks’ fully paid maternity leave that is likely to cause the biggest problems for UK employers. Women in the UK can already take up to 52 weeks’ maternity leave, so increasing the European minimum to 18 weeks would have no effect here.

A change to full pay for 18 weeks would theoretically offer a significant benefit to women. Currently, UK employers only need to provide higher rate statutory maternity pay (SMP) at 90% of normal weekly earnings for six weeks and then lower rate SMP at a flat rate, usually £117.18 per week. However, the European Court of Justice has already confirmed that the current UK arrangements satisfy the directive, which allows for SMP of less than 100% of pay to be paid provided SMP is greater than statutory sick pay. As currently drafted, the proposed new directive would allow the sick pay cap to continue, so no change to maternity pay would be required here.

Although a European prohibition on dismissing women who are pregnant, on maternity leave or who have recently returned to work could potentially be significant, the differences between the current and the proposed amended directive are not substantially different, even allowing for the proposed new prohibition on preparing to dismiss a woman during maternity leave. The ‘new’ right to return to the same or similar work after maternity leave in the draft amended directive is not new at all, but copied for convenience from another existing directive.

Tweaking

Some of the relatively minor changes proposed will probably entail some tweaking of employer’s existing family policies – for example, to accommodate the proposed longer period of compulsory maternity leave the obligation to offer longer leave where the baby is premature, disabled or hospitalised, or where there are multiple births and the proposed extension of post-natal maternity leave if the baby is born after the due date. However, that sort of change is likely to be relatively easy to implement.

Employers will find it much harder to deal with new broad-brush European rights that overlap with existing UK rights, such as the new European right to request flexible work. The new European provisions appear to mirror existing UK laws and, in that sense, UK employers may be better prepared for implementation than their continental colleagues. However, the scope of the new European and existing UK rights will not be exactly the same. For example, the European right to request flexible working arrangements will only apply to women returning to work from maternity leave, whereas the current UK right relates to parents of both sexes with children under six, as well as those caring for dependent adults. The scope for development of ‘two track’ rights, with all the litigation that usually entails, is there.

The implementation of changes to the directive underpinning the current UK rights will also mean the UK will have to introduce an effective remedy for employers that fail to comply. For example, the UK penalty for breach of the flexible working regulations is currently capped at eight weeks’ pay. An employee who wants to make a substantial claim must rely on discrimination legislation, which allows for uncapped compensation.

The proposed amended directive would not allow a cap on compensation for breach of rights that it covers. As well as making things potentially more expensive for employers if they lose, some additional provisions in the amended directive may make it harder for the employer to defend claims from employees for instance, the reversal of the burden of proof – as with sex discrimination claims – and explicit victimisation provisions.

The other family-related changes: the introduction of a new right to ‘filial leave’, which seems to be aimed primarily at employees who look after elderly parents changes to the existing Parental Leave Directive and the introduction of new European rights to paternity leave, could all have a substantial effect in the UK. We do not have anything like filial leave in the UK, so that would be a new right – and is, of course, likely to offer benefits to huge numbers of staff.

Substantial

Although we already have paternity leave, the introduction of a European right is likely to offer far more substantial benefits. In practice, UK take-up of paternity and parental leave is relatively low. This may be influenced by the related financial costs for employees. There is currently no obligation to pay an employee during parental leave, and paternity pay is only equivalent to lower rate SMP. We do not yet have details of these proposed changes as they will not be introduced through the new directive because they do not relate to maternity. They are currently the subject of negotiation by the European ‘social partners’. However, employers are still likely to have at least two years to think about the changes.

The proposed changes will affect UK employers, though not for some time. The impact will be felt through the introduction of new rights, principally new filial and paternity rights and some change to existing rights. The changes will create uncertainty, inconvenience and, in some cases, additional cost for employers. However, given that most of the proposed changes broadly mirror existing UK rights, and that discrepancies between UK and European expectations regarding compliance are unlikely to be clear for some years, there is little that employers can do at this stage to mitigate the potential effects.

Juliet Carp is a solicitor at Speechly Bircham

Practical suggestions for employers

  • Check that family policies have been amended to take into account the latest changes to maternity leave rights that came into effect for employees whose expected weeks of childbirth fall after 5 October 2008. These relate to continuation of non-remuneration benefits etc (see the Maternity and Parental Leave etc and the Paternity and Adoption Leave (Amendment) Regulations 2008).
  • Nothing needs to be done now about the new European proposals. UK implementation is at least two years away.
  • Ensure that existing policies can easily be adapted to take account of new laws when they come in.
  • Think about early implementation of the new rights (but not until draft UK laws are available, ie, not for at least another 18 months), and if the intention is to do the minimum required by law, wait until we have new UK laws before making changes.

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