Q&A: Additional maternity rights – Birth of more rights

Employment lawyers would probably not know what to do with themselves if they had no new maternity legislation to discuss, so it is just as well the Maternity and Parental Leave etc and the Paternity and Adoption Leave (Amendment) Regulations 2008 have come into force. They will affect all those within an expected week of childbirth or expected placement of a child on or after 5 October 2008.

Q Why is the government introducing these changes?

A The government regards these changes as merely clarifying the legal position after the High Court case of Equal Opportunities Commission v Secretary of State for Trade and Industry [2007], in which the court found that the Employment Equality (Sex Discrimination) Regulations 2005 did not comply with European law. This resulted in the introduction of the Sex Discrimination Act 1975 (Amendment) Regulations 2008 (SDA), which eliminated distinctions between ordinary maternity leave (OML) and additional maternity leave (AML). The government felt that the regulations needed to be introduced to ensure the rules on terms and conditions of employment as set out in the Maternity and Parental Leave etc Regulations 1999 (the MPL Regulations) were consistent with the SDA as amended.

The regulations are designed to iron out the differences in treatment between women taking ordinary maternity leave and those taking additional maternity leave. This article will concentrate on maternity rights, but the rules on additional adoption leave will in effect follow the pattern adopted for maternity leave.

Q What will change?

A The main change is that all terms and conditions of employment except those relating to pay will apply to women taking OML and AML. Previously, a woman on AML retained fewer rights during maternity leave so, for example, an employer could decide not to provide benefits such as a company car, mobile telephone or accrual of contractual holiday where the employer’s holiday scheme was more generous than the statutory minimum.

Continuous service for the purposes of contractual rights will continue to accrue during AML as well as OML. Previously, continuity only accrued during AML for the purposes of statutory rights.

Q What impact will these changes have?

A Given that it views these changes as being clarification of the law rather than new rules in its Regulatory Impact Assessment, the government stated that these changes would not result in an additional burden on employers. The main impact is likely to be felt by those employers who only maintain benefits for employees on OML. Such employers are now going to have to extend those benefits. The Regulatory Impact Assessment states that relatively few employees take AML although it forecasts that more women will use their right to go on AML in the future, given the extended period of SMP that now applies (39 weeks). This will obviously have a knock-on effect on the costs of providing benefits during such periods.

Q How should I amend my organisation’s policies – if at all?

A Employers who make no distinction between employees on OML and AML will not need to make changes to their policies. Those who do currently differentiate between those on OML and those on AML will need to update their policies to make it clear that benefits (save for those relating to pay) will extend to employees on AML.

Equally, any distinctions between the accrual of continuous employment for the purposes of contractual rights will need to be removed. However, it seems that for the time being the government is not requiring employers to extend pension contributions to periods of unpaid maternity leave during the AML period.

Q What are the penalties for failing to comply?

A Women on AML will now have the right not to be subjected to any detriment by any act or deliberate failure to act by their employer undertaken for a prescribed reason – which includes childbirth or maternity. At the moment, a woman on AML is protected from detriment because she took or wanted to take AML itself but only a woman on OML can claim she has suffered a detriment because she wanted to use the benefits available to her during OML. Apart from that, the regulations do not introduce new penalties in the sense of new fines or additional rights – however, they will increase the pool of people able to claim that they have been discriminated against, or subjected to a detriment if their employers do not comply with the regulations.

Q Should I be concerned by recent comments that maternity leave discriminates against women?

A Dr Nicola Brewer, chief executive of the Equality and Human Rights Commission, has suggested that extended maternity rights just serve to entrench assumptions that women should still be the main carers of children, rather than promoting a more equal division of child-caring responsibilities.

Sir Alan Sugar’s reported comments about the wisdom of employing women is also a recent addition to a debate that is as old as maternity rights themselves. On a more practical level, this is only an issue for an employer if there is a noticeable trend in the organisation of men consistently being recruited into positions or promoted, even where an equally or more experienced or capable female candidate is available.

Monitoring has been an important function for many years, especially in larger organisations, and it will be more important still if there is a risk that louder complaints about maternity rights mean that managers fall into a mindset that allows them to justify – to themselves, at least – a refusal to hire women in their 20s, 30s and 40s because they are concerned about their maternity rights.

Irrespective of whether or not you believe that having a diverse workforce is a good thing in itself, taking steps to ensure that, as far as possible, recruitment and promotion is gender-blind and being able to evidence those steps will at the very least help an organisation that finds itself having to defend discrimination claims.

Naomi Branston is an employment associate at Taylor Wessing

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