The
Employment Act 2002 has introduced some far-reaching changes to the law and
streamlined this complicated area, writes Emma Grace
Maternity
legislation has recently undergone a fairly radical change. While the impetus
for this are the ‘family-friendly’ ideals of the Government, the good news is
they have taken the opportunity to streamline this complicated area of law.
All
employees who had a baby on or since 6 April 2003 will be affected by the new
law. The previous law still covers women due before this date, so the two will
work in tandem for a period.
A
brief outline of the entitlements that applied before 6 April will help to
illustrate where the changes have come in.
–
A maximum of 40 weeks leave in total – 18 weeks ordinary maternity leave (OML),
plus a maximum possible 29 weeks additional maternity leave (AML)
–
To qualify for AML, the employee had to have one year or more continuous
employment by the 11th week before the expected week of childbirth (EWC)
–
AML was calculated from the date of birth.
–
To qualify for Statutory Maternity Pay (SMP) during her OML, a woman had to
have worked for her employer for 26 weeks prior to the 15th week before the EWC
and paid sufficient National Insurance contributions
–
SMP was 90 per cent of her salary for the first six weeks, and then a flat rate
(£75 a week gross) for the remaining 12 weeks.
The
system had some problems. Notably:
–
There were too many different dates for calculation purposes
–
There were different qualifying periods for leave and pay
–
AML was based on an unknown date, the date of birth. When the employee left,
the employer did not know for definite when she would be coming back
The
new law is far more simple and dates are calculated, wherever possible, from a
fixed point, with the same date and calculation periods used. The idea is to
make it easier for everyone to understand.
At
a glance, the new legislation provides:
–
Maternity leave lasting up to 52 weeks in total
–
OML of 26 weeks
–
AML of up to a further 26 weeks, starting on the day of the last day of OML
–
To qualify for AML, employees must have 26 weeks’ continuous employment prior
to the 15th week before the EWC (the same test as for SMP qualification).
Notice
periods have also been affected by the new legislation. The current legislation
provides:
–
Twenty-one days’ notice from the employee to the employer for both leave and
pay
–
No flexibility to change this date once given.
The
problem here is the lack of flexibility and short notice; 21 days gives
employers little chance to organise cover. The lack of flexibility discourages
employees from giving longer notice to employers.
Intention
to leave
At
a glance, the legislation now provides:
–
The employee must give notice no later than the 15th week before the EWC, and
must inform her employer that she is pregnant, the date of her EWC and the date
she intends to start her leave
–
For the first time, the employer must reply giving the date that leave will
end. This must be done within 28 days from receiving notification from the
employee.
This
is a much better system for employers, providing far more notice of the
pregnancy and leave, allowing employers much more time to plan their cover.
Because it is more flexible, this encourages both parties to be up front
earlier about their plans, knowing they are under no obligation to keep to
them.
Employees
then have to give 28 days’ notice, rather than 21, if they wish to end their
maternity leave earlier than planned.
As
before, SMP will last for the OML period – and thus 26 weeks, rather than the
current 18. The first six weeks are still paid at 90 per cent of salary, and
the flat rate then applies for the remaining 20 – and this has gone up to £100
per week.
Once
an employee has qualified for SMP, she is entitled to be paid this regardless
of whether she is still employed and regardless of why she left your
employment. This corrects a slight anomaly of law in this area.
One
interesting thing to bear in mind is that with 52 weeks’ maternity leave
possible, an employee could well become pregnant again during her leave, and it
is quite possible she could start a new period of leave without ever returning
to work.
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The
right to return to work remains, however. Employers can take small comfort in
the fact that, following a period of AML, the right to return becomes a
slightly more limited right. Where a woman has been absent for a period of
years, showing it was not reasonably practicable for her to return to her
previous job is more likely to be possible.
Emma
Grace is head of employment law at Nelson & Co
