Dilemma – they’re having a baby

Two members of staff in my small company are expecting a baby together, and have suggested that they would like to split maternity leave between them over a year.

However, I can’t afford to have them both away from work for a combined 12 months. What are the legal implications if I do not allow this and push for the traditional nine months’ maternity leave just for the mother?

Answer

As the law stands at present, there is no legal obligation upon employers to allow employees who are having a baby together to divide the maternity period between them to care for the child. However, that may well be set to change.

Currently, all female employees are entitled to take up to 52 weeks’ maternity leave regardless of their length of service. Further, provided they have completed 26 weeks’ continuous employment, 15 weeks before the baby is due, they will also be entitled to statutory maternity pay for 39 weeks.

The idea of parents being able to divide maternity leave between them has been mooted, but legislation has not been introduced. However, ahead of a general election in 2010, the government is set to allow fathers to take six months’ paternity leave.

Fathers, meanwhile, can claim only two weeks’ paid leave for up to eight weeks after a child is born. Under the new plans, you would in future be obliged to allow the couple to split maternity leave between them.

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As regards administering the new system, parents will be required to ‘self-certify’ by providing details of the eligibility to their employer. However, employers and HM Revenue and Customs will both be able to carry out further checks on entitlement if necessary. The government intends that the law will be in force by April 2010 and will be effective for parents of children due on or after 3 April 2011, so by law, you will be allowed to enforce the traditional option of just the mother taking maternity leave. Do not forget, however, that either parent could, as an alternative to taking leave, put in an application for flexible working, including reduced hours to assist with the care of a child.

Jane Hobson, partner, Weightmans