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Conditions of Service - Maternity Rights

ARTICLE ORIGINALLY PUBLISHED JULY 2006

CLIENT'S QUESTION

I have heard that the Maternity Regulations are about to change. Can you let me know what it might mean for my business.

You are right. Following lengthy consultation, the Government has published changes to the Maternity Scheme. These changes apply to employees giving birth on or after 1st April 2007.

The changes will be received with mixed emotions by Employers.

You need to be aware that the new rules also impact upon paternity and adoption rules.

The Law

The Work and Familes Act 2006

The Changes

It is probably more valuable for me to give an overview of the position at April 2007. The changes are shown in bold below.

Women have the following maternity rights:

Time off for antenatal care (this includes travelling and waiting time)
Maternity leave (employees no longer require 6 months service to qualify for additional maternity leave).
Maternity benefit.
The right to return to work after maternity leave.
Protection against unfair dismissal or treatment because they are pregnant or have given birth.
Women are protected under the Sex Discrimination Act from unfair dismissal on the grounds of sex or marriage.
Employer should undertake a risk assessment in respect of newly pregnant staff.
All employees (irrespective of the size of the business) are able to return to their former post or a similar post.

1. Time off for ante-natal care

Wages paid during this time must be at the normal rate. After their initial appointment the employee must be prepared to show the employer on request:

A certificate from a registered health worker that she is pregnant.
Proof that such an appointment has been made.

2. Maternity Leave

At least 28 days before an employee intends to start her maternity leave and/or receiving Statutory Maternity Pay, she must notify her employer:

That she is pregnant.
The expected week of childbirth.
The date she intends to staft taking maternity leave. This cannot be earlier than the beginning of the 14th week before the expected week of birth.

All employees are entitled to 39 weeks statutory ( or ordinary ) maternity leave, irrespective of their length of serice, and 13 weeks additional maternity leave, and 13 weeks unpaid additional maternity leave.

They can choose to return to their job either after the 39th week or at a later date provided they have informed their employer that they intend to extend their leave in to the period of unpaid leave.

They must return to work before the end of the 13 weeks unpaid leave and they must notify thier empoyer no less than 8 weeks before their intended date of return to work. (This is useful as any temporary replacement can expect at least 4 weeks notice).

Maternity Leave will commence on:

The date which the employee has notified the employer as the date she intends to start. The earliest date is 15 weeks pror to the expected week of confinement (ie the 29th week of pregnancy).
The first day after the beginning of the 4th week prior to the expected week of delivery if she is absent from work due to a maternity related illness (ie the 36th week week of pregnancy).
The day she gives birth - if this is prior to the proposed date.

3. Maternity Benefit

Statutoy Maternity Pay (SMP)

Eligibility

All employees who have been emloyed for 15 weeks prior to their expected week of confinement should be eligible for SMP. Providing they earn an average gross wage of £90 per week.

For the first 6 weeks of maternity leave SMP pays 9 tenths of the employees current basic wage and for the other 33 weeks the employee receives SMP, or 90% of their average wage if they earn below the SMP rate.

During the period of ordinary maternity leave the employee will be entitled to all the benefits of her contract/terms and conditions of service, such as:

Accrual of annual holidays.
Continuity of employment.
Use of company vehicle/ mobile phone ( unless these are provided only for business use).
Any relevant pay increase must be applied to the employees salary, even if they are already on maternity leave.

4. The Right to Return to Work

Employees have the right to return to work after their maternity leave. However, they do not have the right to expect to work part time. A word of caution, employers are expected to be flexible and support returning mothers if it is possible to do so. There have been Employment Tribunal cases where employers have lost the case because the employee argued it is Sex Discrimination not to allow them to return on a part time basis.

5. Keep in Touch Days

The new regulations allow the employer to make "reasonable contact" with employees on maternity leave eg. To discuss likely dates of return or the possibility of the employee wishing to change their hours.

Employees on maternity leave will now be able to work for up to 10 days during their maternity leave without losing their entitlement to SMP. This will be invaluable to employers where they wish the employee to attend for training or possibly to undertake key work eg working 10 Mondays.