Maternity, adoption and flexible working proposals

The government is consulting on a number of specific measures that will affect maternity and adoption leave and introduce a right to request flexible working for those with responsibility for caring for adult family members.

Draft Regulations have been produced, amending the Maternity and Parental Leave etc Regulations 1999 (SI 1999/33 12), the Paternity and Adoption Leave Regulations 2002 (SI 2002/2788) and the Flexible Working (Eligibility, Complaints and Remedies) Regulations 2002 (SI 2002/3236). The maternity and adoption leave changes will affect employees with an expected week of childbirth beginning on or after 1 April 2007, or an adoption placement date on or after this date. The amendments to the flexible working legislation will come into force on 6 April 2007.

Although extensive consultation has already been undertaken, and the policy behind the new provisions has largely been decided, the government is seeking views on a number of specific matters relating to the new entitlements.

Qualification for additional maternity leave

The most important change to the maternity leave provisions is the abolition of the qualifying period for additional maternity leave (AML). Currently, AML is available only where the employee has 26 weeks' continuous service as at the beginning of the 14th week before the expected week of childbirth (reg. 5 of the Maternity and Parental Leave etc Regulations 1999). The new Regulations remove this provision, with the effect that all employees become entitled to both ordinary maternity leave (OML) and AML from day one of their employment, giving them up to 52 weeks' statutory maternity leave. This means that all qualifying mothers will be able to take advantage of the contemporaneous extension of the statutory maternity pay period from 26 weeks to 39 weeks.

The distinction between OML and AML will, however, remain, with employees having no entitlement to most contractual benefits during AML.

Early returns to work

The government is concerned about employers' ability to make effective plans for maternity and adoption leave cover - particularly when it is unclear how much leave an employee intends to take. At present, an employee who wishes to return to work before the end of the maternity or adoption leave period must give the employer 28 days' notice of this (reg. 11 of the Maternity and Parental Leave etc Regulations 1999, reg. 25 of the Paternity and Adoption Leave Regulations 2002). This period is to be extended to eight weeks.

Provisions will also be inserted into the relevant regulations to provide that, if an employee who has already given notice of an early return date subsequently seeks to return even earlier, at least eight weeks' notice of the revised date must be given. If the employee seeks to postpone the return to a date later than the notified early return date, notification must be given at least eight weeks before the original early return date.

Contact during leave

The government wishes to encourage employers and employees to stay in touch over the course of maternity and adoption leave. New provisions (reg. 12 of the Maternity and Parental Leave etc Regulations 1999, reg. 21A of the Paternity and Adoption Leave Regulations 2002) are therefore introduced by the amending regulations, and entitle employers to make "reasonable contact" with employees while they are on maternity or adoption leave. The government intends to set out the meaning of "reasonable contact" in guidance.

Keeping-in-touch days

At present, an employee who performs work for the employer during either maternity or adoption leave could be held to have returned to work and brought the leave to an end. A new provision is inserted (reg. 21A of the Maternity and Parental Leave etc Regulations 1999, reg. 21B of the Paternity and Adoption Leave Regulations 2002), specifically allowing employees to perform a number of days' work for their employer without bringing their maternity or adoption leave to an end. Changes are also being introduced to prevent such employees losing out on statutory maternity and adoption pay (see below).

The work in question may involve any work, training or "activity undertaken for the purposes of keeping in touch with the workplace". These keeping-in-touch days must be voluntary and an employee will be entitled not to be dismissed or subjected to any detriment for failing to undertake any such work. On the other hand, employees will have no right to be offered days of work during their leave. Days at work during maternity or adoption leave will not extend the total period of leave. The number of days allowed will be specified in the Regulations, and the government is seeking views on the appropriate number.

In a maternity leave situation the work may not be done until after the two-week compulsory leave period. The government is, however, also seeking views as to whether any other restrictions should be placed on when the days may be taken.

Small employer exemption

The small employer exemption - which purported to exempt employers with no more than five employees from unfair dismissal where they did not keep open a post for employees returning from additional maternity or adoption leave - is to be removed.

Statutory maternity and adoption pay

The consultation paper sets out the changes that the government is proposing to make to the Statutory Maternity Pay (General) Regulations 1986 (SI 1986/1960) and the Social Security (Maternity Allowance) Regulations 1987 (SI 1987/416), and draft amendment Regulations have been published as an addendum to the consultation document.

The government will extend the current maternity pay and maternity allowance periods to 39 weeks. This is preparatory to a further extension to 52 weeks authorised by the Work and Families Bill.

In an effort to simplify the operation of statutory maternity pay and maternity allowance, the Regulations will be amended to ensure that maternity pay and allowance periods can start on any day of the week (at present they must begin on a Sunday). This will allow the pay periods to align fully with the leave periods.

Amendments will allow a woman to work the keeping-in-touch days discussed above without losing maternity pay.

A minor rule change will be made to allow statutory maternity pay to be divided into a more convenient daily rate.

Where appropriate, the amendments will be mirrored by changes to the Statutory Paternity Pay and Statutory Adoption Pay (General) Regulations 2002 (SI 2002/2822).

It should be noted that the qualifying period for statutory maternity and adoption pay of 26 weeks' service as at the beginning of the 14th week before the expected week of childbirth or week of notification of the adoptive match will remain. Any employee with less service will be entitled to 52 weeks' maternity or adoption leave but will not be entitled to statutory maternity or adoption pay.

Flexible working in relation to carers

The right to request flexible working currently applies only when the purpose of the request is to allow the employee to take care of a child. Clause 12 of the Work and Families Bill extends this to allow employees to request a change to their working arrangements to take care of an adult in circumstances provided for in regulations. Draft amendment regulations insert a provision to the effect that an employee can make a request in order to care for someone who is over the age of 18 and is the spouse, civil partner or partner of the employee, a "relative", or someone who lives at the same address as the employee (reg. 3B of the Flexible Working (Eligibility, Complaints and Remedies) Regulations 2002).

With regard to the meaning of "relative", the government has set out two options and is seeking views on which of these should be used.

Under the first option, immediate relatives, including mothers, fathers, adopters, guardians, parents-in-law, sons and daughters, and sons- and daughters-in-law would be covered, with the government estimating that the result would be the right to request flexible working being extended to some 1.1 million carers. Under the second option, a wider range of relatives would be eligible, with siblings, brothers- and sisters-in-law, grandparents and uncles and aunts also included. It is estimated that this would extend the right to a further 400,000 employees.

Timing of flexible working requests

A minor amendment is also made to the timing of the flexible working request where the purpose is to take care of a child. At present, the request must be made in writing at least 15 days before the child's sixth birthday, or 18th birthday in the case of a disabled child. The amendment means that an application can be made up to the day before the day on which the child reaches the age of six or 18.