In on the act: Maternity Regulations 2002
Expectant mothers whose babies are due from next April will have increased rights under the Maternity and Parental Leave (Amendment) Regulations 2002. Emma Peacock, an assistant solicitor in the employment pensions and benefits group at Stephenson Harwood, outlines the changes.
Legal issues
The regulations came into force on 24 November 2002 and will affect employees whose expected date of childbirth begins on or after 6 April 2003. Employers must start adapting policies now because notification provisions will kick in in a few weeks time.
Background
The Green Paper, Work and Parent: Competitiveness and Choice (December 2000), concluded the British economy needed a more flexible labour market. The Government is introducing a raft of new rights to fit its stated aim of delivering "a balanced package of support for working parents, at the same time as reducing red tape for employers".
The Maternity Regulations are the latest issued on family-friendly or work-life policies and these rights, being introduced under the Employment Act 2002, aim to assist a higher proportion of women to return to work.
Ordinary Maternity Leave changes
Ordinary Maternity Leave (OML) will increase from 18 to 26 weeks and remains the basic entitlement for all women irrespective of their length of continuous employment.
They will also receive maternity pay for the entire 26 weeks. As currently, the first six weeks will be at the rate of 90 per cent of their normal wage and the remaining 20 weeks at £100 per week or 90 per cent of their normal wage whichever is lower.
At present an expectant mother must notify her employer of her pregnancy, the expected week of childbirth (EWC) and the date on which she intends to start her maternity leave at least 21 days before that start date.
In future, she will have to notify her employer earlier, in or before the 15th week before the EWC. The start of her OML may be changed provided she gives 28 days notice before the date originally notified or the new date, whichever is earlier.
There is a new obligation on the employer to respond in writing to the employee within 28 days of receiving her notification. This response must state the woman's expected date of return. A woman who wishes to return earlier than that date must give 28 days notice to her employer. If the employer fails to inform her of her expected date of return, she cannot be prevented from returning early and is protected from detriment if she fails to return on the due date.
These timings apply unless it is not reasonably practicable - in which case notice must be given as soon as possible.
Commencement of Maternity Leave
As before, OML may only start 11 weeks before the EWC, but ifa woman is absent from work wholly or partly because of her pregnancy, OML will start automatically at the fourth week before the EWC instead of the existing six weeks. If she gives birth prior to the start of her OML, OML begins on the day childbirth occurs.
Changes to Additional Maternity Leave (AML)
Additional Maternity Leave (AML) entitlement arises once a woman has been continuously employed for 26 weeks by the 14th week before EWC and is, as before, unpaid. AML will be for 26 weeks starting immediately after the end of OML and so will no longer be calculated in reference to the actual week of childbirth. A woman is therefore able to take one year's maternity leave in total, if entitled.
As currently with maternity leave, during OML the terms and conditions of the contract remain in full, including the benefits, apart from the wages. During AML the contract remains but only the terms relating to:
On the part of the employer:
- Trust and confidence
- Grievance and disciplinary procedure
- Right to notice of dismissal
- Right to a redundancy payment
And, on the part of the employee:
- Notice of resignation
- Confidentiality
- Acceptance of gifts or other benefits
- Participation in another business
Right to return to work
After a period of OML, the woman is entitled to return from leave to the job in which she was employed before her absence.
After AML, the woman is entitled to return either to the job she was in before her absence or, if impracticable, the employer has the right to have her return to another job which is both suitable and appropriate for her in the circumstances.
Conclusion
The new rights provide for more women to be entitled to longer periods of maternity leave and the assumption is that the full entitlement will be taken unless notice of early return is given. The employer may no longer ask if a woman intends to take AML. However, employers are now entitled to longer notice before OML will commence. At least now the maternity provisions are becoming somewhat less complicated although there is always room for improvement.
Need to know points
