Maternity rights: legal Q&A

The practical implications of changes to the maternity regulations coming into force in April are likely to mean some changes to best practice for employers.

Q One of our employees has asked whether she will be entitled to the holiday she accrues while away on ordinary maternity leave (OML)?

AAn employee is entitled to the benefit of all her terms and conditions of employment, with a few notable exceptions (namely, right to a salary and obligation to attend work) during her six months’ OML. She will, therefore, accrue annual leave (both contractual and statutory – ie under the Working Time Regulations) during this time.

In most cases, the employee will then choose whether to take the accrued paid leave either before or after her OML. If an employee chooses not to return to work after OML, she will be entitled to be paid for any accrued but untaken holiday in the current holiday year.

Q Are employees entitled to accrue holidays while on additional maternity leave (AML)?

ADuring AML, employees are only entitled to a limited number of their terms and conditions of employment. An employee will only accrue contractual paid leave during AML if it is expressly stated in her contract. In the absence of such a term, employees will only accrue their statutory entitlement (currently 20 days’ paid leave inclusive of bank holidays) while absent on AML.

If the period of maternity leave runs from one holiday year to another, an employee cannot carry over statutory paid leave to the next holiday year. In these circumstances, it is best practice to offer employees the opportunity to add their statutory holiday entitlement (accrued to that date and to be accrued during their absence) to the start of their maternity leave, so they do not lose this right.

Q How would it affect an employee’s maternity leave and pay if we asked her to come into work for a few days to assist on a project?

AUnder the current legislation, if an employee returns to work for the purpose of working and not merely visiting to show off the new arrival, then her entitlement to her remaining maternity leave and pay falls away. However, from 1 April, employees will be permitted to carry out 10 days’ work without losing their right to any remaining maternity leave and pay. These days will be known as keeping-in-touch days.

An employer cannot be forced to provide work, and an employee cannot be forced to work. The employee will receive no additional payment other than her maternity pay (where applicable). Unless agreed otherwise, the work carried out must be the type of work she carries out under her employment contract, and it can include attending training courses.

Q Can we contact an employee while she is absent on maternity leave?

AAt present, the law is silent on this issue. Many employers err on the side of caution and make contact only when necessary to arrange the employee’s return. An employer may, however, be required under the implied duty of trust and confidence to provide absent employees with certain details, eg promotion opportunities (Visa International Service Association v Paul 2004).

It is not always easy for an employer to decide the level of appropriate contact. Best practice is to discuss and confirm in writing with the employee, prior to her going on maternity leave, the level of contact she would like, including communication of information regarding the business and internal opportunities. This ensures that employers can be satisfied that they are providing sufficient information without bombarding absent employees.

From 1 April, the law will state that “reasonable” contact will be permitted during maternity leave. Guidance has been promised on the meaning of “reasonable”. It is likely that it will suggest employers should follow the approach outlined above where the employer and employee agree as to what is reasonable in the circumstances.

Q Will the new regulations have any impact on men?

AThe changes in force on 1 April will have no effect on the current provision of two weeks’ statutory paternity leave. The government has stated its intention to extend this so that fathers may have the right to six months’ paid paternity leave, subject to the mother not exhausting her entitlement to paid leave. The practicalities of these changes are not yet finalised. Draft regulations are awaited.

By Helen Hughes, employment partner, Shakespeares

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