There must have been a collective sigh of exasperation from employers when the Government announced in December that it intended to change the law governing maternity regulations. Again.
The legislation is already difficult to figure out, not least because there are about a dozen different Acts and statutory instruments, some of which are contradictory.
Little wonder, then, that when the Equal Opportunities Commission and Personnel Today (16 November 2004) asked about 1,500 HR professionals what changes they would like to see, 96% said they wanted the law to be harmonised.
Keith Astill, head of corporate personnel at Nationwide, flagged up some of the main sticking points facing employers.
“Each case is potentially different, so each time there are issues to consider around qualification criteria; notification requirements; dates when the leave can start; duration of the leave; rates of pay; the right to return to work; the right to request flexible working; and accrued holiday,” he said.
Frequently asked questions
Who qualifies? All pregnant employees are entitled to 26 weeks’ ordinary maternity leave but if they have worked for 26 weeks by the 15th week before the baby is due, then they will also be entitled to additional maternity leave.
What is the pay? If the woman has worked for 26 weeks by the 15th week before the baby is due and earns more than £79 per week, the chances are that she will be entitled to statutory maternity pay.
This is paid at 90 per cent of average weekly earnings for the first six weeks of ordinary maternity leave. The flat rate – currently £102.80, rising to £106 from April 2005 – then cuts in, unless 90per cent of her earnings is less than the flat rate, in which case that is what she gets.
What are the notification requirements? The employee has to tell you at least 15 weeks before the baby is due that she is pregnant, the date when it is due and the date when she intends to start her maternity leave.
She has to give you 28 days’ notice of when she wants her statutory maternity pay to start.
You have to tell the woman when she is due to return to work, that is either 26 or 52 weeks from the date when her ordinary maternity leave or additional maternity leave is due to start.
What rights does the woman have on her return? After ordinary maternity leave a woman is entitled to return to exactly the same job that she was doing before she left.
A similar right applies after additional materinity leave, but with the qualification that if you cannot offer her the same job, you can offer another that is ‘suitable’ and ‘appropriate’.
Can you make her redundant? Yes, as long as it is not because she is pregnant or on maternity leave. You have to give her priority over other staff when offering suitable alternative work.
Is she entitled to holidays? Yes, so you have to calculate what she is owed when she comes back from ordinary maternity leave, whether it is under her contract or the working time regulations.
Women on additional maternity leave are only entitled to holiday accrued under the regulations.
Simplifying the regulations
It is clear that the regulations are in desperate need of simplification.
A number of organisations, including the Confederation of British Industry; the Federation of Small Businesses; the Institute of Payroll and Pensions Management; the Trade Unions Congress; the Equal Opportunities Commission; and the Maternity Alliance, are consulting to achieve that.
The aim is to draw up a set of proposals to put to the Better Regulation Task Force which will radically reform the regulations.
The proposals, if put into effect, could help to make the rules for pregnant staff much less complex.
Proposals to simplify maternity pay and leave
Statutory maternity pay
- All pregnant women who work should be entitled to statutory maternity pay
- The actual pay for the first six weeks (or possibly longer) to be the woman’s pay on the day she starts her leave – overtime to be included if contractually obligatory
- Women with no normal working hours, should be paid the average weekly rate calculated over the 12-week period before the start date of statutory maternity pay
- Women whose pay varies with the amount of work done should be paid at the average hourly rate calculated over 12 weeks before the start date of statutory maternity pay
- The rest of the period to be paid on a straight flat rate – with no percentage reduction for lower paid women.
- Maternity leave (of one year) should be available to all working women who are pregnant
- There should only be one type of maternity leave
- All contractual rights should continue throughout the period of leave, including pensions and holidays.
Alison Clarke is an employment lawyer and freelance journalist.
Watch out for Personnel Today’s One-Stop Guide to Managing Pregnancy at Work. Part of our Management Resources Series, the guide, written by Alison Clarke and endorsed by the EOC, will be launched in May this year.