MATERNITY

The old and new side by side

New maternity rights will apply to employees whose expected week of childbirth (EWC) begins on or after 1 April 2007 (regardless of when the baby is actually born).

Any pregnancy notifications employers receive from now on will be from employees entitled to benefit from the new rules. But the old arrangements continue for employees whose EWC is before 1 April 2007, and will remain relevant for managing their maternity leave and other rights for up to a further 12 months after that (the end of the additional maternity leave period available to qualifying employees under the previous provisions).

Rights and duration of leave

• Under the new rules, all women have the right to 12 months’ maternity leave - six months' ordinary maternity leave (OML) and six months' additional maternity leave (AML). The 26 weeks’ qualifying service employees needed for AML under the old rules has gone.

• "Compulsory maternity leave" remains.  Employers must not allow an employee to return to work for a minimum of two weeks after her baby is born. Failure to comply is a criminal offence and employers are liable to be fined if convicted.

• Women on OML are entitled to all their usual terms and conditions of employment, except "remuneration", defined as wages or salary.  They should continue to receive benefits such as holiday entitlement and car allowance and, if they are receiving contractual maternity pay or SMP (see below), pension contributions.

• Women on AML remain covered by the implied duty of trust and confidence, and are entitled to any terms and conditions relating to notice of termination, redundancy compensation, and disciplinary or grievance procedures.

Employers must continue to provide benefits such as pension contributions or permanent health insurance for as long as women are receiving either contractual maternity pay or SMP.

Employers do not have to provide these benefits during unpaid AML, provided other employees absent from work on a long-term basis are treated the same, and provided there are no express contractual terms to the contrary.  However, holiday under the Working Time Regulations 1998 continues to accrue.

Statutory maternity pay

Under the new rules, SMP is payable for 39 weeks, up from 26 weeks.  It is proposed that this will be extended to 12 months by the end of the current Parliament, but that will not be in force before April 2008. A proportion of SMP will still be recoverable from the state.

The start date for SMP depends on when the employee gives notice and stops work, but it cannot be earlier than the 11th week before the EWC, and the latest it can start is the day after the baby is born.

SMP can now start mid-week where maternity leave is triggered automatically by pregnancy-related absence or birth.  Previously it could only start at the beginning of the following week. 

To qualify for SMP, employees must meet certain conditions - for more on this, go to: http://www.hmrc.gov.uk/employers/employee_pregnant.htm#10; and http://www.hmrc.gov.uk/employers/flowchart-from-e15.pdf

SMP for the tax year 2007-2008 is as follows:
• First six weeks of maternity leave - 90% of the woman's "normal weekly earnings" (higher rate SMP)

• Remaining maternity leave weeks (maximum 33) - The lesser of £112.75 per week (as from April 2007) or 90% of the woman's "normal weekly earnings" (lower rate SMP)

"Normal weekly earnings" are calculated using an eight-week reference period. Employers can recoup approximately 92% of SMP through the PAYE system.  Small employers can recoup 100%, plus an administration fee.

‘Keeping in touch’ days

Under the new rules, "keeping in touch" (KIT) days will enable employees to work for up to 10 days at any time during their maternity leave (except during the compulsory leave period) without losing their entitlement to SMP or triggering the end of their leave. Employees will have the right to contractual maternity pay and/or SMP during KIT days, but any additional pay will be a matter for negotiation.

KIT days must be agreed between employer and employee, and are entirely voluntary. Women are protected from suffering any detriment by their employer as a result of taking them, considering taking them or refusing to take them.

Contact during maternity leave

The DTI guidance on the Work and Families Act clarifies that employers are entitled to make "reasonable" contact with employees (and vice-versa) at any stage during maternity leave, to discuss a range of issues – for example, plans for their return to work, important developments at the workplace and relevant promotion opportunities or job vacancies that arise during their maternity leave. Employers should agree the parameters and method of contact with employees before maternity leave and, if an employee objects at any time, cease contact.

Right to return to work

Under the new rules, women who wish to return to work before the end of AML have to give eight weeks' notice – previously this was 28 days. If they fail to do so, their employer may postpone their return for up to eight weeks provided that does not go beyond the end of AML. Employees returning to work at the end of AML do not have to give notice, as before.

Adoption

The Work and Families Act introduces similar changes to adoption leave and pay as those for maternity leave and pay, although the length of service qualification for adoption leave remains (26 weeks' service on the Saturday of the week in which employees are notified they have been matched with a child for adoption).

PATERNITY

What’s to come

The Work and Families Act gives government the power to introduce new rules allowing employed fathers up to 26 weeks' additional paternity leave (APL), some of which could be paid, provided the mother returns to work. The Government has yet to produce draft regulations, and the new rules are not expected to come into force before April 2008.
 

Carers and flexible working rights

From 6 April 2007, the right to request flexible working will be extended to carers.  Previously this has been restricted to mothers, fathers, adopters, guardians or foster parents, or their partners, who have responsibility for bringing up a child under six years old (or under 18 years if disabled). 

Employees must have been continuously employed for at least 26 weeks at the date of the request. The formal procedure for dealing with a flexible working request remains unchanged.

The nature of the care involved is irrelevant, but ‘carers’ are employees who are, or expect to be, caring for an adult (aged 18 or over) who is:

• their marriage or civil partner

• their relative (includes mother, father, brother, sister, adopter, guardian, parent-, son-, daughter, brother-, or sister-in-law, uncle, aunt or grandparent, or adoptive, half-blood and step relationships)

• none of these, but lives at the same address.

PRACTICAL ADVICE

Both the old and new rights must be understood by employers and employees and applied correctly. Mistakes could prove costly – employees could be given more maternity leave and pay than they are entitled to, or could claim breach of their statutory rights if they are not given their full entitlement.

Employers should particularly focus on the following issues.

• Old rights vs new rights
Understand all the old and new rights, particularly when the new rights apply. They should consider maintaining two separate maternity policies in tandem: setting out both the old and new rights in one policy is likely to be confusing. Line managers should be trained in how to apply both old and new rules, too.

• Notice periods
Ensure employees are made aware of the correct notice requirements. If they are referred to old maternity policies that only require 28 days notice of their return from leave, it may not be reasonable to require them to give longer notice.

• Keeping in touch days
Seek to agree KIT days and the parameters for any other contact during maternity leave with employees before they commence their leave. Their primary purpose is to encourage more effective communication between employers and employees during maternity leave and to ease employees' return to work.

• Additional paternity leave
Keep a watching brief on the proposals for additional paternity leave. The logistics of such a scheme are likely to be complicated. Take up of the new right will probably be modest initially – Government estimates between 10,000 and 16,000 fathers a year, but the scheme is likely to attract parents where the mother earns substantially more than the father.

• Flexible working
Ensure any requests for flexible working from carers are dealt with in accordance with the formal procedure. There is a notable gap in the new legislation: parents and carers of children aged seven to 18 do not have the statutory right to make a flexible working request, unless their child is disabled.  The DTI has confirmed this exception is intentional.  However, given the possibility of sex discrimination claims, requests from these employees should still be properly addressed.

Useful websites

• DTI: www.dti.gov.uk/employment/workandfamilies

• Equal Opportunities Commission: www.eoc.org.uk/Default.aspx?page=15353

• Acas: www.acas.org.uk/index.aspx?articleid=869

• HM Revenue and Customs: www.hmrc.gov.uk/employers/iwtpay-statutory-maternity-paternity-pay.shtml

• HM Revenue and Customs (SMP caluclator): www.hmrc.gov.uk/calcs/smp.htm


Melanie Lane is an employment lawyer at Olswang Solicitors

(melanie.lane@olswang.com)