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Maternity & Adoption Leave and Pay

The Work and Families Act 2009 extended the existing statutory maternity and adoption provisions of the time, bringing about some welcome changes to the rules.  The successful challenge of the Equal Oportunities Commission (before it was subsumed into the Equaity & Human Rights Commission) in the case of Equal Opportunities Commission v Secretary of State for Trade and Industry has brought further changes for pregnant women which took effect from October 2009.

In general terms the changes brought by the two items above are as follows (To avoid repetition references to Maternity Leave and Maternity Pay should be taken to also mean Adoption Leave and Adoption Pay unless otherwise stated):

• Statutory Maternity Pay is now payable for 39 weeks;
  
• All pregnant employees are entitled to take 52 weeks of maternity leave, regardless of their length of service with their employer;
  
• Employers are allowed to make ‘reasonable contact’ with the employee whilst on leave;
  
• ‘Keeping in Touch’ days will enable mothers to work for a 10 days during periods of maternity leave without the loss of statutory pay for that week and without ending their period of leave; 
  
• There is no longer any distinction (in relation to the entitlement to contractual benefits) between Ordinary Maternity Leave and Additional Maternity Leave;
  
• All employees have the right to return to the same or a similar job regardless of the size of the organisation - preventing an employee from doing so will be automatically unfair under s99 of the ERA 1996;
  
• The notice required to change the date of return to work is now 8 weeks.

Ordinary Maternity Leave (OML)

This is currently still the first 26 weeks of maternity leave, although the changes brought about by the Sex Discrimination Act 1975 (Amendment) Regulations 2008 may result in the names OML and AML being abandoned.  During this period an employee is:

• entitled to the benefit of the terms and conditions of employment (except remuneration) which would have applied if she had not been absent, and
  
• bound by any obligations arising under those terms and conditions (except in so far as they are inconsistent with the employee's right to take OML)

This means that if there are additional perks, e.g. company car or gym membership, then the employee should retain those during OML.

Employers should note that this includes the benefits which would arise from any pay rise, in particular the effect that would have on the calculation of statutory maternity pay (SMP). Therefore, if the employer awards a pay rise which is effective at any time from the start of the period used to work out SMP and the end of maternity leave, he must recalculate the SMP payable to the employee and pay the balance owed to her.

The earliest this period of leave can begin is 11 weeks before the EWC and the latest it can start is the actual date of birth.

If an employee is off work with an illness which can be “wholly or partly because of pregnancy” at any point from 4 weeks before the EWC then the employer can enforce the commencement of maternity leave from that point.

Additional Maternity Leave (AML)

This is still currently the second 26 weeks of maternity leave.  Until October 2009 an employee taking AML was not entitled to the benefit of all the terms and conditions available to an employee on OML, unless her contract provides otherwise.

However, the introduction of the amendment regulations identifed above substantially changed this position.   Any employee with an EWC of 5th October 2009 and beyond now enjopyes the benefits of the contractual protections afforded by OML for the entire period of her maternity leave. 

This means that, for example, employees retain such rights as gym membership or the use of their company car for the entire period that they are on maternity leave.

Although this change has not yet been officially recognised in the Maternity & Parental Leave Regulations which govern Maternity Leave any employer who does not act now could be subject to costly claims for Sex Discrimination.

Compulsory Maternity Leave

An employee is required by to commence compulsory maternity leave on the birth of her child.  She is prevented from returning to work before the end of a period of 2 weeks beginning with the date of birth (or 4 weeks in a factory environment).

Annual Leave During Maternity Leave

Employees on maternity leave retain their entitlement to statutory annual leave (currently four weeks’ paid leave per year) throughout both OML and AML.

Notification Requirements

An employee who is pregnant is required to inform her employer of the fact that she is pregnant by the 15th week before the expected week of childbirth (around the 25th week of pregnancy).

She is also required to notify her intentions with regard to:

• When she wants her maternity leave and pay to start;
  
• Her intended date of return if she is not planning on taking the full 52 weeks leave.
  

Employers can request that this notification is made in writing.  The employee should also provide her maternity certificate (MAT B1) at the same time.  This form will have been provided by her midwife at around the 21st week of pregnancy.

Once this notification has been received then the employer should write to the employee confirming the expected return date and setting out their entitlement to pay.

An employee who wants to change the start date of their maternity leave must give 28 days notice.

An employee who wants to change their date of return from maternity leave must give 8 weeks notice of that change.

Employers can postpone the date of any return to work until the earliest of either the end of what would have been 8 weeks notice, the original date of return or the end of the maternity leave period.

Risk Assessments

Employers are required to carry out a risk assessment of the employee’s role.  This must clearly identify any risks to the employee and her child whilst she is pregnant, and any risks after she has had the child (particularly if she intends to breastfeed).  An employer who fails to carry ut a Risk Assessment has committed both an act of Sex Discrimination and a repudiatory breach of contract entitling the employee to claim constructive dismissal.

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