Changes to maternity and adoption leave and pay

Legislation in force from 1 October 2006 makes changes to the rules on maternity and adoption leave and pay. This guidance note sets out the amendments made to existing laws.


KEY POINTS

  • New maternity and adoption rules affect employees with an expected week of childbirth on or after
  • 1 April 2007, and those who expect a child to be placed with them for adoption on or after this date.

  • The service qualification for additional maternity leave is removed, giving employees the right to 52 weeks' maternity leave. This brings maternity leave into line with the existing right to 52 weeks' adoption leave.
  • Statutory maternity and adoption pay are extended to 39 weeks.
  • Employees will be able to work for up to 10 days during maternity and adoption leave without losing their rights to leave and pay.
  • The notice period for early return from maternity and adoption leave is extended from 28 days to eight weeks.
  • The small-employer exemption is removed in respect of return from additional maternity and adoption leave, making it clear that employees may claim automatic unfair dismissal if they are not allowed to return to the same or a similar job.
  • Minor amendments are made to the statutory pay scheme, making it easier for employers to administer statutory maternity, adoption and paternity pay.

  • In April 2003 a number of new rights for parents were introduced, including more generous maternity leave and pay, the right to ask for flexible work and new rights to paternity and adoption leave and pay.

    The government made a commitment to review the new laws in 2006. Having completed the review, it has made some changes to maternity and adoption leave and pay. This article considers the following changes to leave and pay, which came into force on 1 October 2006:

  • the removal of the service qualification for additional maternity leave (AML), giving all employees the right to 52 weeks' leave;

  • the extension of statutory maternity pay (SMP) and statutory adoption pay (SAP) to 39 weeks;

  • new rights for employers to make reasonable contact with employees during maternity and adoption leave, and for employees to work for up to 10 days during their leave period without losing their rights to leave and pay;

  • a change from 28 days to eight weeks in the notice period for early return from maternity and adoption leave;

  • the removal of the small-employer exemption in respect of return from AML and additional adoption leave (AAL); and

  • amendments to the statutory payment scheme, including enabling SMP to start on any day of the week and to be paid at a daily rate.

    The new provisions relating to maternity and adoption leave are contained in the Maternity and Parental Leave etc and the Paternity and Adoption Leave (Amendment) Regulations 2006 (SI 2006/2014).

    Those relating to maternity, paternity and adoption pay are contained in the Statutory Maternity Pay, Social Security (Maternity Allowance) and Social Security (Overlapping Benefits) (Amendment) Regulations 2006 (SI 2006/2379) and the Statutory Paternity Pay and Statutory Adoption Pay (General) and the Statutory Paternity Pay and Statutory Adoption Pay (Weekly Rates) (Amendment) Regulations 2006 (SI 2006/2236).

    Although both male and female employees may be entitled to adoption leave and pay, for simplicity this article refers to the parent who takes adoption leave as "she".

    Application

    The new provisions apply only to employees whose expected week of childbirth (EWC) is on or after 1 April 2007, regardless of when the baby is actually born, and to employees who expect to have a child placed for adoption on or after 1 April 2007, regardless of when the child is actually placed.

    The existing provisions continue to apply to employees whose EWC is before 1 April 2007, and to those who expect to have a child placed with them for adoption before 1 April 2007.

    Maternity leave

    There are two periods of maternity leave. Ordinary maternity leave (OML) lasts for 26 weeks and runs from the start of the leave period. AML also lasts for 26 weeks and begins the day after the end of OML. An employee must notify her employer by the end of the 15th week before her EWC or - if that is not reasonably practicable, as soon as reasonably practicable - of the fact that she is pregnant, her EWC, and the date on which she intends to start her OML.

    Provided that they give the appropriate notice, all pregnant employees are entitled to 26 weeks' OML, irrespective of the hours they work, their length of service and whether they are permanent or temporary. Employees with an EWC prior to 1 April 2007 are entitled to AML if they have been continuously employed by the same employer for 26 weeks by the beginning of the 14th week before the EWC.

    Under the new rules, the service requirement for AML is removed. An employee whose EWC is on or after 1 April 2007, who is entitled to OML and gives the required notice, will also be entitled to AML, giving her 52 weeks' maternity leave.

    Adoption leave

    There is no change to the service requirements for adoptive parents, who are already entitled to take ordinary adoption leave (OAL) for 26 weeks and AAL for 26 weeks. However, the service requirement for adoption leave is different from that for maternity leave. An adoptive parent must have worked for her employer for 26 weeks by the week in which she is notified that she has been matched with a child in order to qualify for OAL and AAL.

    SMP period

    An employee for SMP1 purposes is a person who pays class 1 national insurance, or would do so if her earnings were high enough, and who pays tax under PAYE. To qualify for SMP an employee must: have worked for her employer for at least 26 weeks by the 15th week before the baby is due; have average earnings of at least the lower earnings limit (currently £84); and still be employed in the 15th week before the EWC.

    For employees with an EWC before 1 April 2007, SMP is payable for a maximum of 26 weeks. For those with an EWC on or after 1 April 2007 it is payable for a maximum of 39 weeks.

    SMP is paid at the rate of 90% of average earnings for the first six weeks and then at a flat rate (or 90% of average earnings if that is lower) for the remaining 20 or 33 weeks. The flat rate increases in April every year. It is currently £108.85, and is expected to rise to £111 per week in April 2007. An employee is entitled to the increase in the flat rate if it rises during her maternity pay period.

    If an employee does not qualify for SMP because, for example, she has not worked for her employer for sufficiently long or her earnings are too low, she can apply to Jobcentre Plus for maternity allowance (MA). To qualify for MA an employee must have worked for 26 weeks out of the 66 weeks before her EWC and have earnings of at least £30 a week in 13 of those weeks. MA will also be payable for up to 39 weeks for employees whose EWC is on or after 1 April 2007. MA is paid at the flat rate for the full 39 weeks. All the new provisions, including work during maternity leave, apply to an employee in receipt of MA.

    SAP period

    To qualify for SAP an employee must have worked for her employer for at least 26 weeks by the week in which she is notified of being matched with a child for adoption, and have average earnings of at least the lower earnings limit. SAP will increase from 26 to 39 weeks for employees who meet the qualifying conditions, and have a child who is expected to be placed for adoption on or after 1 April 2007. SAP will continue to be paid at the flat rate for the full 39 weeks.

    Rights during maternity and adoption leave

    Employees have different rights during OML and OAL and AML and AAL, and have different rights to return to work at the end of these periods.

    During OML or OAL an employee is entitled to the benefit of all her terms and conditions of employment, apart from remuneration, and has the right to return to the same job afterwards. During AML or AAL she is entitled to only some of her terms and conditions, such as the right to notice and redundancy pay. She has the right to return to the same job or, if it is not reasonably practicable, to a suitable alternative job. As a result of the extension of leave and pay an employee will be entitled to 52 weeks' maternity or adoption leave and, provided that she meets the qualifying conditions, will receive SMP, MA or SAP for the first 39 weeks of her leave. The leave period will still be divided into 26 weeks' ordinary leave and 26 weeks' additional leave, and there is no change to an employee's rights during the two periods or the job to which the employee should return. The employee will still be entitled to her contractual rights (apart from remuneration) and the right to return to the same job during the 26-week ordinary leave period. However, she will receive SMP, MA or SAP for 26 weeks' ordinary leave and for 13 weeks of the additional leave period, making 39 weeks' pay in total.

    The extension of paid leave will also affect an employee's entitlement to pension contributions during ordinary and additional leave. While an employee is required to pay contributions based on the actual pay that she receives, ie maternity or adoption pay, the employee is entitled to receive pension contributions from the employer as though working normally during the ordinary leave period, ie contributions based on normal pay. She is also entitled to receive full pension contributions for as long as she is on paid maternity or adoption leave.

    This means that employees whose EWC is on or after 1 April 2007, or whose child is expected to be placed for adoption on or after 1 April 2007, will continue to receive full pension contributions from their employer throughout their OML or OAL period, and for 13 weeks of their AML or AAL period.

    Keeping-in-touch days

    The new rules allow an employee to work for up to 10 days during maternity or adoption leave without bringing the maternity or adoption leave period to an end. This is to enable the employer and employee to keep in touch during her leave. Employees may work during ordinary or additional leave, with the proviso that an employee cannot work during the two weeks of compulsory maternity leave immediately after the birth of her baby. Factory workers are prohibited from working during the four weeks immediately after the birth, and it follows that they cannot work on keeping-in-touch days during that period even though this is not specifically stated in the new Regulations.

    The keeping-in-touch days do not have to be consecutive. They can be used for training or any other activity, such as a staff meeting, that enables the employee to keep in touch with the workplace. Working for part of a day will count as one day's work. Employers may also make reasonable contact with employees, regardless of whether or not they do any work during their leave, for example to discuss the employee's return to work. Doing so will not bring the leave period to an end. Guidance on "reasonable contact" is expected from the Department of Trade and Industry (DTI) later this year.

    Any work done during maternity or adoption leave must be by agreement and neither the employer nor the employee can insist on it. Days of work will not extend the maternity or adoption leave period.

    Payment for keeping-in-touch days

    Under the new rules an employee may work for up to 10 keeping-in-touch days during her maternity or adoption pay period without losing SMP, MA or SAP. If an employee receives contractual maternity or adoption pay she will still be entitled to it if she works for up to 10 days during her leave.

    There are no specific provisions in the Regulations in relation to pay for keeping-in-touch days, so this will be a matter for agreement between the employer and employee. However, if an employee does some work under her contract of service for the employer paying her SMP or SAP, it is expected that she will receive contractual pay for the work done. The amount of pay will be a matter for agreement between employer and employee, but the minimum that must be paid for the week in which the keeping-in-touch day falls is the SMP or SAP rate to which the employee is entitled for that SMP or SAP week.

    No change has been made to the normal offset rules, so the employer may continue to count any SMP or SAP due for a week against its contractual pay obligations for the same week. As a result, when an employee chooses to take advantage of a keeping-in-touch day she retains her SMP or SAP for that week, whereas under the current rules it would be lost. The minimum that she must receive is her SMP or SAP, and the normal offset rules will apply.

    For example, if an employee on maternity leave earns £50 for a keeping-in-touch day, she will be able to retain her SMP. The £50 earned will be offset against her SMP, meaning that she will receive £111 for the week (the expected flat rate for SMP from April 2007 to April 2008). If she works for three keeping-in-touch days in the same week and earns £150 she will receive £150, her SMP being offset against contractual pay paid for the same week. The employer will be able to reclaim the normal amount of SMP from HM Revenue & Customs.

    Because payment for keeping-in-touch days will be worked out between the employer and employee, they can agree that the employee will be paid any amount for a week in excess of the SMP or SAP rate to reflect the additional work done. It is very important that both parties are clear how contractual payment for keeping-in-touch days will work and how much pay the employee will receive in respect of the week.

    Once the keeping-in-touch days have been used up, the employee will lose a week's SMP or SAP for any week in which she does any work under her contract of service for the employer paying her SMP or SAP. She will lose SMP or SAP for the whole week even if she works only a few hours during the week. So, if a week in the SMP or SAP period contains only keeping-in-touch days, SMP or SAP will be retained. If a week contains, for example, the last of the keeping-in-touch days and another day of work, the employee will lose that week's SMP or SAP.

    Protection from detriment and unfair dismissal

    Under s.99 of the Employment Rights Act 1996 it will be automatically unfair to dismiss an employee for working or refusing to work during maternity or adoption leave. Under s.47C of the Employment Rights Act 1996 employees are also protected from detriment for working or refusing to work during maternity or adoption leave.

    Date of return to work

    Currently, once an employer has received notice of the date on which an employee wants to start her OML, the employer must write to the employee within 28 days, notifying her of the date on which her OML will end, if she is entitled to only OML, or, if she is entitled to both OML and AML, the date on which her AML will end.

    As all employees whose EWC is on or after 1 April 2007 will be entitled to AML, employers will simply need to write to these employees within 28 days of receiving their maternity leave notice, stating the date on which their AML will end. As all employees who have worked for their employer for 26 weeks by the week in which they are notified of a match with a child are entitled to OAL and AAL, the situation will remain the same and an employer should notify an employee of the date on which her AAL will end.

    Notice of return to work

    Given that under the new rules all employees will be entitled to 52 weeks' leave, an employee should return to work on the first working day after the end of her 52 weeks' AML or AAL, which should be the date notified by the employer. Unless she gives notice that she wants to return earlier, her employer should assume that she will return at the end of AML or AAL. The employee does not need to give notice of return to work if she returns on the day after the end of the AML or AAL period.

    It is likely that an employee to whom the new rules apply will not be able to return at the end of the 26-week OML or OAL period without giving notice to return early. The assumption is that the employee will return at the end of her AML or AAL period unless she gives notice, as she would effectively be returning to work early if she returned after OML or OAL. DTI guidance states that an employee entitled to AML or AAL who wishes to take only 26 weeks' OML or OAL (for example, to guarantee her right to return to the same job), must give the employer notice of her return to work because she will be returning to work before her full leave entitlement has ended.

    Notice of early return

    Under the existing rules, an employee who wants to return to work before the end of maternity or adoption leave must give the employer at least 28 days' notice of the date she intends to return. If the employee returns to work without giving 28 days' notice, the employer is entitled to postpone her return until she has given 28 days' notice.

    However, the employer cannot postpone an employee's return to work beyond the end of her maternity or adoption leave period. Where the employer has postponed the employee's return and informed her of this, the employer is entitled to refuse to pay the employee until she has given the required notice, or the maternity or adoption leave period has expired.

    Employees whose EWC or expected date of placement is on or after 1 April 2007 and who want to return to work before the end of maternity or adoption leave must give at least eight weeks' notice of the date on which they wish to return.

    This means that employees who want to take only OML or OAL must give at least eight weeks' notice of early return. As under the existing rules, if an employee returns to work without giving sufficient notice, the employer is entitled to postpone her return for the full notice period but cannot postpone it beyond the end of the maternity or adoption leave period. If the employer notifies the employee that her return date has been postponed and the employee returns to work anyway she is not entitled to be paid.

    This does not apply if the employer did not notify the employee of the date on which her maternity or adoption leave ends. In that case, the employee does not have to give notice of early return and the employer has no right to delay the employee's return or refuse to pay her. An employee is protected from detriment and dismissal for failing to return at the end of maternity or adoption leave where the employer did not give notification of the end of the leave and it was reasonable for the employee to believe that her leave had not ended, or where her employer gave her less than 28 days' notice of the date on which her leave would end and it was not reasonably practicable for her to return by that date.

    More than one change of return date

    Where the EWC or expected date of placement is before 1 April 2007, there are no specific notice provisions allowing an employee to change her mind once notice to return to work early has been given or the employee has had her return postponed after returning to work without giving sufficient notice.

    The Maternity and Parental Leave etc and the Paternity and Adoption Leave (Amendment) Regulations 2006 have clarified the situation and provide that an employee can change her mind as long as she gives at least eight weeks' notice before whichever is earlier of the date on which she now intends to return or the date on which she had intended to return.

    For example, if an employee has given eight weeks' notice to return to work before the end of her AML on date X, but changes her mind and wants to go back earlier than date X, she must give at least eight weeks' notice of the date she now intends to return. If she wants to go back later than date X she must give at least eight weeks' notice before date X.

    These notice requirements also apply where an employer has postponed an employee's return because she returned to work before the end of her eight-week notice period, and she wishes to change the return date.

    For example, Jane's AML ends on 1 May 2008, but she decides to go back to work at the end of her 39 weeks' paid leave, and on 1 November 2007 gives her employer notice that she will return to work on 1 February 2008. She has difficulty finding suitable childcare and decides that it may not be possible to return to work on 1 February.

    Therefore, on 1 December 2007 she gives notice to her employer that she will now return at the end of her AML, on 1 May 2008. Because she is returning later than originally notified, Jane has given her employer notice on 1 December 2007 of a new date at least eight weeks before the date of 1 February 2008 originally notified.

    Disrupted placement during adoption leave

    There is an eight-week period allowing adoptive parents to come to terms with the ending of a placement. This applies in three sets of circumstances.

  • If the employee has started OAL before the placement and the adoption agency notifies her that the child will not be placed with her, the OAL will end eight weeks after the end of the week in which the employee is notified that the placement will not take place.

  • If the child dies during the adoption leave, the leave will end eight weeks after the end of the week in which the child dies.

  • If the child is returned to the adoption agency, the leave will end eight weeks after the end of the week in which the placement ends.

    If an employee's OAL ends during the eight-week period, she is entitled to AAL until the end of the eight-week period. However, if the employee's AAL ends during the eight-week period, her AAL is not extended and she is due back at work at the end of the 26-week AAL period. An employee may take annual leave, by agreement with the employer, if she wishes to have more time off.

    If a placement comes to an end, the employee should give the employer eight weeks' notice that she is returning to work earlier than expected. As the adoption leave will end eight weeks after the disrupted placement, this means that the employee should notify the employer on the day that the placement ends that she will be returning to work in eight weeks' time.

    In many cases, the employee will have advance warning that the placement is likely to come to an end. However, where there is no warning the employee should give notice that she is returning to work early on the day the placement ends, or as soon as possible afterwards. If the employee does not, she could face a delayed return to work.

    If the employee returns to work without giving eight weeks' notice, the employer is entitled to postpone the employee's return until eight weeks' notice has been given, although not beyond the end of the AAL period. If the employee returns to work anyway, she is not entitled to be paid. This does not apply if the employer did not notify the employee of the date on which her AAL ends. In that case, the employee does not have to give notice of early return and the employer has no right to delay the employee's return or refuse to pay her.

    Removal of small-employer exemption

    Under the existing rules an employee cannot claim automatic unfair dismissal if the employer employs fewer than six employees and it is not reasonably practicable for the employer or any successor to allow the employee to return to the same job or to a suitable alternative job after additional maternity or adoption leave. The employer must first consider whether the employee can return to the same job, and then whether there is a similar job.

    Only if the employer can show that there is no such job and no suitable alternative, will the exception apply. However, although the dismissal will not be automatically unfair, the employee may still be able to claim unfair dismissal and sex discrimination.

    The small-employer exemption has been removed for employees whose EWC or expected date of placement is on or after 1 April 2007. An employee can claim automatic unfair dismissal if she is prevented from returning to the same job or a suitable alternative job, regardless of the size of the organisation.

    Changes to the start of SMP

    Under the current rules, SMP usually starts at the beginning of a week, ie on a Sunday. It generally starts on the Sunday after the employee stops working and starts her maternity leave. The earliest that SMP can start is the Sunday at the beginning of the 11th week before the EWC. Once she has qualified for SMP, if she leaves her job or is dismissed before the start of the 11th week before her EWC, the employee's SMP will start on the Sunday at the start of the 11th week before her EWC. If she leaves her job or is dismissed after the 11th week before the EWC, but before the birth, her SMP will start on the Sunday after her job ends. SMP will start on another day of the week only if:

  • the employee gives birth before starting her maternity leave or works up to the birth, in which case SMP will start on the day after the birth; or

  • the employee is absent because of a pregnancy-related sickness in the four weeks before the EWC, in which case SMP will start on the day after the first day of absence.

    For women whose EWC is on or after
    1 April 2007, SMP can start on any day of the week, bringing it into line with the start of maternity leave, in the following situations.

  • Where the employee has given notice to start her maternity leave, her SMP will start on the day stated in her notice.

  • Where the employee leaves her job or is dismissed after the 11th week before the EWC, SMP will start on the day after her job ends. Once she has qualified for SMP, if she is dismissed before the start of the 11th week before her EWC her SMP will start when she reaches the 11th week.

  • Where the employee gives birth before the 11th week before the EWC, SMP will start on the day after the birth.

  • Where the employee gives birth after the 11th week before the EWC, but before the date she notified to her employer that she intended to give up work, or works up to the birth, SMP will start on the day after the birth.

  • Where the employee is absent because of a pregnancy-related absence during the four weeks before the EWC, SMP will start on the day after the first day of absence.

    Calculating SMP at a daily rate

    For women whose EWC is on or after 1 April 2007, an employer may calculate SMP at a daily rate by paying one-seventh of the weekly rate. This is intended to simplify the administration of SMP and could be used where, for example, an employee's SMP overlaps a monthly payroll or where her SMP starts in the middle of the week.

    This does not mean that SMP is payable for odd days: the employee is still entitled to SMP for each week of the 39-week SMP period. However, the weekly rate is capable of being divided by seven in order to fit SMP more easily into the employer's payroll.

    Where SMP is paid on a weekly or daily basis it is rounded up to the nearest whole penny. With regard to women whose EWC is before 1 April 2007, there is no provision for calculating a daily rate. SMP can be paid on a weekly basis only.

    The start of SAP

    There is no change to the start of SAP as it can already start on any day. The employee can choose when she wishes to receive SAP and it may start on:

  • the day the child is placed with her or, if the employee is at work that day, the following day; or

  • a specified date, which must be no more than 14 days before the expected date of placement. If the employee has left her job, for whatever reason, after qualifying for SAP, the SAP will begin 14 days before the expected date of placement or on the day after the last day of employment, if the contract ends within 14 days before the expected date of placement.

    Calculating SAP at a daily rate

    As with SMP, where a child is expected to be placed for adoption on or after 1 April 2007, the employer may calculate SAP at a daily rate by paying one-seventh of the weekly rate. This could occur where the employee's SAP period overlaps a monthly payroll or where SAP starts in the middle of the week. Where SAP is paid on a weekly or daily basis it is rounded up to the nearest whole penny.

    Where a child is expected to be placed for adoption before 1 April 2007 there is no provision for calculating a daily rate. SAP can be paid on a weekly basis only.

    Changes to paternity pay

    Most of the new provisions outlined above do not apply to paternity leave and pay. For example, the right to work for up to 10 days without loss of leave or pay does not apply during paternity leave. Minor changes have been made to the payment of statutory paternity pay (SPP).

    As with SMP and SAP, where the EWC or expected date of placement is on or after 1 April 2007, an employer may calculate SPP at a daily rate by paying one-seventh of the weekly rate. This could occur where an employee's SPP period overlaps a monthly payroll or where the SPP period starts in the middle of the week.

    Where SPP is paid on a weekly or daily basis it is rounded up to the nearest whole penny. SPP is already capable of starting on any day of the week. It is up to the employee to choose whether to start SPP on the date the baby is born or placed for adoption, or the following day if the employee is at work that day; a set number of days after the birth or adoption; or a predetermined date after the birth or adoption.

    Further changes ahead

    The Regulations on maternity and adoption leave and pay were made as a consequence of the Work and Families Act 2006. The Act also contains powers to extend maternity and adoption pay to 52 weeks and to introduce a new entitlement to additional paternity leave (APL) and additional statutory paternity pay (ASPP).

    APL and ASPP will be in addition to the current entitlement to two weeks' paternity leave and pay and will be able to be taken within the second six months of the child's life. Some of the APL could be paid if the child's mother or adopter has returned to work and has some of her entitlement to SMP, MA or SAP left at the time of her return. The government intends to introduce these new measures by the end of this parliament, which is expected to be by 2010, but is still consulting on the details of the new scheme.

    From April 2007 the right to ask for flexible work will be extended to carers. The government has consulted on the draft Regulations and final Regulations are expected to be announced by the end of the year.

    This feature was contributed by Katie Wood, a barrister specialising in maternity and parental rights.


    LEGISLATION

    Maternity and Parental Leave etc Regulations 1999 (SI 1999/3312)

    12A Work during maternity leave period

    (1) Subject to paragraph (5), an employee may carry out up to 10 days' work for her employer during her statutory maternity leave period without bringing her maternity leave to an end.

    (2) For the purposes of this regulation, any work carried out on any day shall constitute a day's work.

    (3) Subject to paragraph (4), for the purposes of this regulation, work means any work done under the contract of employment and may include training or any activity undertaken for the purposes of keeping in touch with the workplace.

    (4) Reasonable contact from time to time between an employee and her employer which either party is entitled to make during a maternity leave period (for example to discuss an employee's return to work) shall not bring that period to an end.

    (5) Paragraph (1) shall not apply in relation to any work carried out by the employee at any time from childbirth to the end of the period of two weeks which commences with the day on which childbirth occurs.

    (6) This regulation does not confer any rights on an employer to require that any work be carried out during the statutory maternity leave period, nor any right on an employee to work during the statutory maternity leave period.

    (7) Any days' work carried out under this regulation shall not have the effect of extending the total duration of the statutory maternity leave period.


    LEGISLATION

    Maternity and Parental Leave etc Regulations 1999 (SI 1999/3312)

    11 Requirement to notify intention to return during a maternity leave period

    (1) An employee who intends to return to work earlier than the end of her additional maternity leave period, shall give to her employer not less than eight weeks' notice of the date on which she intends to return.

    (2) If an employee attempts to return to worker earlier than the end of her additional maternity leave period without complying with paragraph (1), her employer is entitled to postpone her return to a date such as will secure, subject to paragraph (3), that he has eight weeks' notice of her return.

    (2A) An employee who complies with her obligations in paragraph (1) or whose employer has postponed her return in the circumstances described in paragraph (2), and who then decides to return to work -

    (a) earlier than the original return date, must give her employer not less than eight weeks' notice of the date on which she now intends to return;

    (b) later than the original return date, must give her employer not less than eight weeks' notice ending with the original return date.

    (2B) In paragraph (2A) the "original return date" means the date which the employee notified to her employer as the date of her return to work under paragraph (1), or the date to which her return was postponed by her employer under paragraph (2).

    (3) An employer is not entitled under paragraph (2) to postpone an employee's return to work to a date after the end of the relevant maternity leave period.

    (4) If an employee whose return to work has been postponed under paragraph (2) has been notified that she is not to return to work before the date to which her return was postponed, the employer is under no contractual obligation to pay her remuneration until the date to which her return was postponed if she returns to work before that date.

    (5) This regulation does not apply in a case where the employer did not notify the employee in accordance with regulation 7(6) and (7) of the date on which her additional maternity leave period would end.


    LEGISLATION

    Statutory Maternity Pay (General) Regulations 1986 (SI 1986/1960)

    2 The Maternity Pay Period

    (1) Subject to paragraphs (3) to (5), where -

    (a) a woman gives notice to her employer of the date from which she expects his liability to pay her statutory maternity pay to begin; and

    (b) in conformity with that notice ceases to work for him in a week which is later than the 12th week before the expected week of confinement,

    the first day of the maternity pay period shall be the day on which she expects his liability to pay her statutory maternity pay to begin in conformity with that notice provided that day is not later than the day immediately following the day on which she is confined.

    (2) The maternity pay period shall be a period of 39 consecutive weeks.

    (3) In a case where a woman is confined -

    (a) before the 11th week before the expected week of confinement; or

    (b) after the 12th week before the expected week of confinement and the confinement occurs on a day which precedes that mentioned in a notice given to her employer as being the day on which she expects his liability to pay her statutory maternity pay to begin,

    section 165 of the Contributions and Benefits Act shall have effect so that the first day of the maternity pay period shall be the day following the day on which she is so confined.

    (4) In a case where a woman is absent from work wholly or partly because of pregnancy or confinement on any day -

    (a) which falls on or after the beginning of the fourth week before the expected week of confinement; but

    (b) not later than the day immediately following the day on which she is confined, the first day of the maternity pay period shall be the day following the day on which she is so absent.

    (5) In a case where a woman leaves her employment -

    (a) at any time falling after the beginning of the 11th week before the expected week of confinement and before the start of the maternity pay period, but

    (b) not later than the day on which she is confined,

    the first day of the maternity pay period shall be the day following the day on which she leaves her employment.

    1And statutory adoption and paternity pay purposes.