Policy clinic: new family friendly legislation – Keep on your toes

The Work and Families Act 2006 has been slightly lost in all the fuss over the new age discrimination laws. However, it will have the effect of adding to HR’s to-do list.

The principal changes that it implements for parents of children expected to be born after 1 April 2007 are as follows:

  • No period of qualifying service will be required to benefit from additional maternity leave (AML).
  • An employee who intends to return from AML earlier than her original return date must now give eight weeks’ notice as opposed to 28 days, (and if she tries to return early without giving the correct notice, the employer can postpone her return until the full eight weeks’ notice has been given, although this cannot exceed the date on which her maternity leave ends).

However, if the employer did not give the employee the correct notification of when her maternity leave would end in the first place, the employee is not obliged to give eight weeks’ notice of her return.

  • If an employee wishes to return from maternity leave later than the date originally notified to her employer, she must give the employer eight weeks’ notice.
  • The employee can benefit from 10 ‘keeping-in-touch days’ whereby she can come into work without being deemed to have terminated her maternity leave or lose any right to Statutory Maternity Pay (SMP).
  • The SMP period has been extended to 39 weeks (six weeks at 90% of salary, 33 weeks on SMP).
  • The maternity pay period can start on any day, not just a Sunday (this should make organising payroll easier for those being paid SMP).
  • The employer can make ‘reasonable contact’ with the employee during maternity leave without ending maternity leave.
  • The small employer’s exemption in relation to the employee’s right to return has been removed (previously an employer with less than five employees could claim that it was not reasonably practicable to enable an employee returning from AML to be given a suitable and appropriate job).

The principal changes implemented for those expecting to adopt a child after 1 April 2007 are as follows:

  • An allowance of 10 keeping-in-touch days.
  • The employer can make ‘reasonable contact’.
  • The period of paid leave will be extended to 39 weeks.
  • The adoption pay period can start on any day, not just a Sunday (as with SMP this should make organising payroll for those being paid Statutory Adoption Pay easier).
  • The employee must give eight weeks’ notification of her early or late return.
  • As with maternity leave, the small employer’s exemption has been removed.

However, an employee wishing to take adoption leave is still required to have 26 weeks’ continuous service.

Extending maternity leave

The government is planning to extend the maternity pay period to a year, although this has not yet been implemented. The regulations putting the Work & Families Act into effect also contain rules allowing one partner to ‘take over’ the other partner’s maternity leave – so if, for example, a mother does not use up all her maternity leave, a father could benefit from the amount of leave left over.

Again, this has not yet been implemented and careful thought will need to be given to exactly how this will work in practice.

Keeping-in-touch days

The issue of whether an employee should receive payment for keeping-in-touch days is unclear as there is no mention of it in the regulations. The most recent DTI guidance indicates employees should be paid, because the days allow the employee to work under her contract of employment and therefore, she should be paid pursuant to that.

However, the guidance then goes on to say that the “rate of pay is a matter for agreement with the employer, and may be set out in the employment contract or as agreed on a case-by-case basis”.

The DTI also points out that the employer will need to keep its statutory obligations in mind, such as those relating to minimum pay and equal pay.

Although the DTI’s own position is unclear as to what the rate of pay should be, the implication seems to be that the employee should be paid her normal contractual rate, unless agreed otherwise – and she should not be paid less than male colleagues doing similar work.

Any SMP due should continue to be paid during keeping-in-touch days (and any contractual or other payments made to the employee can include SMP, so the employer does not, at least, have to pay contractual salary plus SMP).

This all involves a lot of second guessing for what amounts to a maximum of 10 days’ work – which is likely to involve re-training or updating on techniques and equipment and generally meeting colleagues prior to a return to work.

Employers should bear in mind that the employee cannot demand to be allowed her keeping-in-touch days, nor can the employer require her to attend work for them – the regulations envisage that, if used, the days should be agreed between the parties with no ability for either party to compel the other to comply.

The employer may not allow the employee to use her keeping-in-touch days during the two-week compulsory maternity leave period. In addition, the employer cannot subject an employee to a detriment because she wanted to use her keeping-in-touch days or has refused a request on the part of the employer that she come into work on a keeping-in-touch day.

Remember that the DTI guidance is just that – guidance – and does not have the force of legislation. However, in a vacuum of information, and until there are any tribunal decisions on the point, it is a fairly solid indication of what you should be doing.

Reasonable contact

Many employers make an effort to keep in ‘reasonable contact’ in any event with employees on maternity or adoption leave, so it seems that the regulations are only codifying what very often happens in practice – and they at least give some comfort that communicating with employees is not going to have the inadvertent effect of ending maternity leave.

However, employers and employees will still need to be careful that ‘reasonable contact’ does not turn into ‘working from home’.

Naomi Branston is an associate in Taylor Wessing’s employment and pensions group

Key considerations 

What to bear in mind when amending your policies:

  • Given that these changes are intended to apply only for children expected to be born or adopted after 1 April 2007, think about when a new policy should be rolled out – if you do it now, and if you only intend to change the company’s policy as far as you absolutely have to comply with the new rules, the dates from which these rules apply should be made clear.
  • Removal of qualifying period for AML needs to be made clear.
  • Clarify the change to the SMP and SAP periods.
  • Explain the rules relating to the change in the period of notification where an early or late return to work is envisaged. Consider including a sentence to the effect that while the regulations envisage a minimum of eight weeks’ notice (although it is open to the employer to agree to accept less), it would be appreciated if the employee could give as much notice as possible, to facilitate planning. The employee cannot be forced to give more than the minimum notice.
  • Your policy should cover the issue of keeping-in-touch days. The best approach, while the issue of pay remains unclear, is to state that employees are welcome to ask the employer for keeping-in-touch days (and that the employer may ask the employee to come into work on such days) but that any such requests will be considered on a case-by-case basis and there is no obligation on either side to agree to them.
  • Your policy should also make clear to whom requests for keeping-in-touch days should be made, and what the process will be for considering them.
  • The Work and Families Act and its regulations and the DTI do not state how much notice either party must give if it wants to make use of the keeping-in-touch days. You could suggest a reasonable period of notice in your policy.
  • If your policy already exceeds its statutory obligations, consider whether any further amendments will continue to exceed statutory requirements, bearing in mind that an expectation will have been created in your employees’ minds.

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