The Maternity and Parental Leave Regulations 1999: An EOR guide

Part I - General

Citation and commencement

1. These Regulations may be cited as the Maternity and Parental Leave etc. Regulations 1999 and shall come into force on 15th December 1999.

The right to parental leave came into force in respect of parents of children born from 15 December 1999. The changes in maternity leave rights apply in relation to women whose expected week of childbirth falls on or after 30 April 2000.

Parallel Regulations came into force in Northern Ireland on the same date (SR 1999 No 471).

Interpretation

2.-

(1)In these Regulations-

"the 1996 Act" means the Employment Rights Act 1996;

"additional maternity leave" means leave under section 73 of the 1996 Act;

"business" includes a trade or profession and includes any activity carried on by a body of persons (whether corporate or unincorporated);

"child" means a person under the age of eighteen;

"childbirth" means the birth of a living child or the birth of a child whether living or dead after 24 weeks of pregnancy;

"collective agreement" means a collective agreement within the meaning of section 178 of the Trade Union and Labour Relations (Consolidation) Act 1992(a) , the trade union parties to which are independent trade unions within the meaning of section 5 of that Act;

"contract of employment" means a contract of service or apprenticeship, whether express or implied, and (if it is express) whether oral or in writing;

"disability living allowance" means the disability living allowance provided for in Part III of the Social Security Contributions and Benefits Act 1992(b);

"employee" means an individual who has entered into or works under (or, where the employment has ceased, worked under) a contract of employment;

"employer" means the person by whom an employee is (or, where the employment has ceased, was) employed;

"expected week of childbirth" means the week, beginning with midnight between Saturday and Sunday, in which it is expected that childbirth will occur, and "week of childbirth" means the week, beginning with midnight between Saturday and Sunday, in which childbirth occurs;

"job", in relation to an employee returning after additional maternity leave or parental leave, means the nature of the work which she is employed to do in accordance with her contract and the capacity and place in which she is so employed;

"ordinary maternity leave" means leave under section 71 of the 1996 Act;

"parental leave" means leave under regulation 13(1);

"parental responsibility" has the meaning given by section 3 of the Children Act 1989(a), and "parental responsibilities" has the meaning given by section 1(3) of the Children (Scotland) Act 1995(b) ;

"workforce agreement" means an agreement between an employer and his employees or their representatives in respect of which the conditions set out in Schedule 1 to these Regulations are satisfied.

(2)A reference in any provision of these Regulations to a period of continuous employment is to a period computed in accordance with Chapter I of Part XIV of the 1996 Act, as if that provision were a provision of that Act.

(3)For the purposes of these Regulations any two employers shall be treated as associated if-

(a)one is a company of which the other (directly or indirectly) has control; or

(b)both are companies of which a third person (directly or indirectly) has control;

and "associated employer" shall be construed accordingly.

(4)In these Regulations, unless the context otherwise requires,-

(a)a reference to a numbered regulation or schedule is to the regulation or schedule in these Regulations bearing that number;

(b)a reference in a regulation or schedule to a numbered paragraph is to the paragraph in that regulation or schedule bearing that number, and

(c)a reference in a paragraph to a lettered sub-paragraph is to the sub-paragraph in that paragraph bearing that letter.

Several aspects of the definition section are worthy of note. The right to parental leave (and the right to maternity leave) is restricted to "employees". This is in contrast to other new domestic and European legislation, which adopt the wider definition of a "worker" and thereby confer rights on some self-employed workers and contract staff. Note, however, that the Government has powers under s.23 of the Employment Relations Act to make an Order to change the definition of who is to be treated as an employee for the purpose of statutory rights.

The definition of "job" is significant in terms of the post to which an employee on parental leave or additional maternity leave returns. As discussed below, the definition is a quite broad one, allowing employers flexibility in respect of the work which is to be done ("nature of the work") and tying the right to the contract of employment, which itself may contain flexibility in respect of place of work.

The right to parental leave is contingent on an employee having "parental responsibility" for the child in question. The definitions sections links this - and limits it - to the statutory definition of "parental responsibility" provided by the Children Act. What this covers is discussed under reg.13.

Application

3.-

(1)The provisions of Part II of these Regulations have effect only in relation to employees whose expected week of childbirth begins on or after 30th April 2000.

(2)Regulation 19 (protection from detriment) has effect only in relation to an act or failure to act which takes place on or after 15th December 1999.

(3)For the purposes of paragraph (2)-

(a)where an act extends over a period, the reference to the date of the act is a reference to the last day of that period, and

(b)a failure to act is to be treated as done when it was decided on.

(4)For the purposes of paragraph (3), in the absence of evidence establishing the contrary an employer shall be taken to decide on a failure to act-

(a)when he does an act inconsistent with doing the failed act, or

(b)if he has done no such inconsistent act, when the period expires within which he might reasonably have been expected to do the failed act if it was to be done.

(5)Regulation 20 (unfair dismissal) has effect only in relation to dismissals where the effective date of termination (within the meaning of section 97 of the 1996 Act) falls on or after 15th December 1999.

The new provisions in respect of pregnancy rights do not apply to women whose expected week of childbirth is before 30 April 2000. This means that women who take their maternity leave at the earliest opportunity (ie 11 weeks before the expected week of childbirth) will qualify for the extra four weeks' ordinary maternity leave if they begin their leave from 13 February onwards. The same date applies in respect of eligibility for additional maternity leave for women with one year's service.

Part II - Maternity leave

Entitlement to ordinary maternity leave

4.-

(1)An employee is entitled to ordinary maternity leave provided that she satisfies the following conditions-

(a)at least 21 days before the date on which she intends her ordinary maternity leave period to start, or, if that is not reasonably practicable, as soon as is reasonably practicable, she notifies her employer of-

(i)her pregnancy;

(ii)the expected week of childbirth, and

(iii)the date on which she intends her ordinary maternity leave period to start,

and

(b)if requested to do so by her employer, she produces for his inspection a certificate from-

(i)a registered medical practitioner, or

(ii)a registered midwife, stating the expected week of childbirth.

(2)The notification provided for in paragraph (1)(a)(iii)-

(a)shall be given in writing, if the employer so requests, and

(b)shall not specify a date earlier than the beginning of the eleventh week before the expected week of childbirth.

(3)Where, by virtue of regulation 6(1)(b), an employee's ordinary maternity leave period commences with the first day after the beginning of the sixth week before the expected week of childbirth on which she is absent from work wholly or partly because of pregnancy-

(a)paragraph (1) does not require her to notify her employer of the date specified in that paragraph, but

(b)(whether or not she has notified him of that date) she is not entitled to ordinary maternity leave unless she notifies him as soon as is reasonably practicable that she is absent from work wholly or partly because of pregnancy.

(4)Where, by virtue of regulation 6(2), an employee's ordinary maternity leave period commences with the day on which childbirth occurs-

(a)paragraph (1) does not require her to notify her employer of the date specified in that paragraph, but

(b)(whether or not she has notified him of that date) she is not entitled to ordinary maternity leave unless she notifies him as soon as is reasonably practicable after the birth that she has given birth.

(5)The notification provided for in paragraphs (3)(b) and (4)(b) shall be given in writing, if the employer so requests.

Regulation 4 sets out the notification rules for the 18-week ordinary maternity leave period. These have been simplified somewhat, but compliance is still important. A woman who fails to comply with the notification requirements loses her right to take ordinary maternity leave.

A woman will still be required to inform the employer that she is pregnant at least 21 days before she wishes to start her maternity leave, or as soon as is reasonably practicable. She must also inform the employer of her expected week of childbirth, by means of a medical certificate if the employer requests it, and she must say when she wishes to start her leave.

The notification of pregnancy will no longer have to be in writing, but this is of minimal significance since the employer, by virtue of reg.4(2)(a), is still entitled to require a written notification of the date on which the woman intends her ordinary maternity leave period to start.

Regulation 4(3) caters for the situation where maternity leave is automatically triggered by a woman's pregnancy-related absence after the beginning of the sixth week before expected childbirth. In such a case, the woman must notify as soon as is reasonably practicable (in writing if the employer requests it) that she is absent from work wholly or party because of pregnancy.

As noted, a woman who does not comply with the notification requirements has no right to take statutory maternity leave. This means that once she leaves work, she has no right to statutory maternity pay. Nor, if she is dismissed expressly or by not being allowed to return to work, will she have a right to claim ordinary unfair dismissal unless she has one year's service at the relevant date. However, it is at least arguable that a dismissal in such circumstances will be regarded as for a reason "connected with" her pregnancy, for which there is no service requirement, and which is automatically unfair.

Entitlement to additional maternity leave

5. An employee who satisfies the following conditions is entitled to additional maternity leave-

(a)she is entitled to ordinary maternity leave, and

(b)she has, at the beginning of the eleventh week before the expected week of childbirth, been continuously employed for a period of not less than a year.

The reduction in the service qualification to one year is the main change in respect of additional maternity leave. The woman must attain the one year's service as of the 11th week before the expected week of childbirth. It is estimated that some 50,000 women per year will benefit from this change.

There is no separate requirement to notify an intention to take or commence additional maternity leave as such, but reg.12 imposes a separate notification requirement in respect of return from additional maternity leave.

Commencement of maternity leave periods

6.-

(1)Subject to paragraph (2), an employee's ordinary maternity leave period commences with the earlier of-

(a)the date which, in accordance with regulation 4(1)(a)(iii), she notifies to her employer as the date on which she intends her ordinary maternity leave period to start, and

(b)the first day after the beginning of the sixth week before the expected week of childbirth on which she is absent from work wholly or partly because of pregnancy.

(2)Where the employee's ordinary maternity leave period has not commenced by virtue of paragraph (1) when childbirth occurs, her ordinary maternity leave period commences with the day on which childbirth occurs.

(3)An employee's additional maternity leave period commences on the day after the last day of her ordinary maternity leave period.

The Regulations allow women to choose when they want to start maternity leave, subject to parameters similar to those under the previous law. These permit women to choose to start maternity leave at any time from the 11th week before the expected week of the birth (see reg.4(2)(b)), but with maternity leave starting automatically if a woman is absent from work due to pregnancy-related illness in the six weeks prior to the birth.

Duration of maternity leave periods

7.-

(1)Subject to paragraphs (2) and (5), an employee's ordinary maternity leave period continues for the period of eighteen weeks from its commencement, or until the end of the compulsory maternity leave period provided for in regulation 8 if later.

(2)Subject to paragraph (5), where any requirement imposed by or under any relevant statutory provision prohibits the employee from working for any period after the end of the period determined under paragraph (1) by reason of her having recently given birth, her ordinary maternity leave period continues until the end of that later period.

(3)In paragraph (2), "relevant statutory provision" means a provision of-

(a)an enactment, or

(b)an instrument under an enactment,

other than a provision for the time being specified in an order under section 66(2) of the 1996 Act.

(4)Subject to paragraph (5), where an employee is entitled to additional maternity leave her additional maternity leave period continues until the end of the period of 29 weeks beginning with the week of childbirth.

(5)Where the employee is dismissed after the commencement of an ordinary or additional maternity leave period but before the time when (apart from this paragraph) that period would end, the period ends at the time of the dismissal.

Ordinary maternity leave has been increased to 18 weeks to match the statutory maternity pay period. As under previous law, additional maternity leave follows on from ordinary maternity leave and can continue until the end of 29 weeks beginning with the week of childbirth.

The remaining parts of this Regulation are unchanged.

Compulsory maternity leave

8. The prohibition in section 72 of the 1996 Act, against permitting an employee who satisfies prescribed conditions to work during a particular period (referred to as a "compulsory maternity leave period"), applies-

(a)in relation to an employee who is entitled to ordinary maternity leave, and

(b)in respect of the period of two weeks which commences with the day on which childbirth occurs.

Section 72 of the Employment Rights Act, as amended by the Employment Relations Act, provides that an employer "shall not permit an employee … to work during a period of compulsory maternity leave". The Regulations define this as the period of two weeks commencing with the day on which childbirth occurs.

Note that the prohibition is against a woman working, not merely against her returning to work. "Work", for this purpose, must mean any work, even if it is undertaken at home. Section 72(5) of the Employment Rights Act as amended makes it a criminal offence for an employer to contravene these provisions.

Exclusion of entitlement to remuneration during ordinary maternity leave

9. For the purposes of section 71 of the 1996 Act, which includes provision excluding the entitlement of an employee who exercises her right to ordinary maternity leave to the benefit of terms and conditions of employment about remuneration, only sums payable to an employee by way of wages or salary are to be treated as remuneration.

During the ordinary maternity leave period, it remains the case that a woman is entitled to the benefit of the terms and conditions of employment which would have applied had she not been absent, except for terms and conditions "about remuneration".

The Government promised to clarify what this means and the Regulation specifies that "remuneration" for this purpose is restricted to sums payable to an employee by way of "wages or salary". Therefore, any form of pay or emolument which cannot be classified as "wages or salary" must be continued during ordinary maternity leave. This raises the question of what is meant by "wages or salary"? In our view, this is unlikely to be held to include anything which does not form a regular part of the employee's weekly pay packet. On that basis, pension contributions, profit related pay and bonuses must continue to be paid.

Redundancy during maternity leave

10.-

(1)This regulation applies where, during an employee's ordinary or additional maternity period, it is not practicable by reason of redundancy for her employer to continue to employ her under her existing contract of employment.

(2)Where there is a suitable available vacancy, the employee is entitled to be offered (before the end of her employment under her existing contract) alternative employment with her employer or his successor, or an associated employer, under a new contract of employment which complies with paragraph (3) (and takes effect immediately on the ending of her employment under the previous contract).

(3)The new contract of employment must be such that-

(a)the work to be done under it is of a kind which is both suitable in relation to the employee and appropriate for her to do in the circumstances, and

(b)its provisions as to the capacity and place in which she is to be employed, and as to the other terms and conditions of her employment, are not substantially less favourable to her than if she had continued to be employed under the previous contract.

Special provisions, re-enacted from the 1996 Act, deal with the situation where there is a redundancy situation during an employee's maternity leave, which makes it not practicable for the employer to continue to employer her under her existing contract of employment. In such circumstances, the employee has a priority right to be offered any suitable available vacancy, and on terms and conditions which are not "substantially less favourable to her".

Requirement to notify intention to return during a maternity leave period

11.-

(1)An employee who intends to return to work earlier than the end of her ordinary maternity leave period or, where she is entitled to additional maternity leave, the end of her additional maternity leave period, shall give to her employer not less than 21 days' notice of the date on which she intends to return.

(2)If an employee attempts to return to work earlier than the end of a 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 21 days' notice of her return.

(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.

This Regulation provides that women who intend to return to work before the end of their ordinary or additional maternity leave period must give the employer at least 21 days' notice of the intended date of return. This is to allow the employer to make suitable arrangements to end maternity cover, and the employer can postpone the woman's return if the requisite notice is not given.

Requirement to notify intention to return after additional maternity leave

12.-

(1)Where, not earlier than 21 days before the end of her ordinary maternity leave period, an employee who is entitled to additional maternity leave is requested in accordance with paragraph (3) by her employer to notify him in writing of-

(a)the date on which childbirth occurred, and

(b)whether she intends to return to work at the end of her additional maternity leave period,

the employee shall give the requested notification within 21 days of receiving the request.

(2)The provisions of regulations 19 and 20, in so far as they protect an employee against detriment or dismissal for the reason that she took additional maternity leave, do not apply in relation to an employee who has failed to notify her employer in accordance with paragraph (1).

(3)A request under paragraph (1) shall be-

(a)made in writing, and

(b)accompanied by a written statement-

(i)explaining how the employee may determine, in accordance with regulation 7(4), the date on which her additional maternity leave period will end, and

(ii)warning of the consequence, under paragraph (2), of failure to respond to the employer's request within 21 days of receiving it.

Employers are entitled to make a written request that a woman who is eligible to take additional maternity leave notify them in writing that she intends to return to work at the end of her additional maternity leave period. This notification can be requested no earlier than 21 days before the end of the ordinary maternity leave period. The employer can also ask for confirmation of the date on which childbirth occurred. Regulation 12(3) sets out further conditions which the employer must comply with in making the request.

If the employee does not provide the written notification within 21 days of receiving the request, she loses her right to be treated as automatically unfairly dismissed if she is dismissed in consequence. However, such a dismissal might still be regarded as unfair on ordinary unfair dismissal grounds, in the same way that dismissal of an employee who fails to return on the due date will not be automatically unfair, but may now be held to be unreasonable under ordinary unfair dismissal principles.

Note that the employer no longer has a right to postpone an employee's return to work after additional maternity leave.

Part III - Parental Leave

Entitlement to parental leave

13.-

(1)An employee who-

(a)has been continuously employed for a period of not less than a year; and

(b)has, or expects to have, responsibility for a child,

is entitled, in accordance with these Regulations, to be absent from work on parental leave for the purpose of caring for that child.

(2)An employee has responsibility for a child, for the purposes of paragraph (1), if-

(a)he has parental responsibility for the child under the Children Act 1989(a), or has acquired such responsibility in accordance with the provisions of that Act;

(b)he has parental responsibilities for the child under the Children (Scotland) Act 1995(b), or has acquired such responsibilities in accordance with the provisions of that Act; or

(c)he has been registered as the child's father under any provision of section 10(1) or 10A(1) of the Births and Deaths Registration Act 1953(c) or of section 18(1) or (2) of the Registration of Births, Deaths and Marriages (Scotland) Act 1965(d).

(3)An employee is not entitled to parental leave in respect of a child born before 15th December 1999, except for a child who is adopted by the employee, or placed with the employee for adoption by him, on or after that date.

The new right to parental leave is conferred on any employee who has one year's continuous service with the employer and "has, or expects to have, responsibility for a child". That child must be born after 15 December 1999, or have been placed for adoption with the employee after that date.

The main qualifying condition for parental leave is the one year's service requirement with the employer. The right to parental leave and the right to additional maternity leave have the same one year's service requirement. That means that mothers will be able to add on some parental leave to their ordinary or additional maternity leave, should they choose to do so. They will also usually be able to add on some of the four weeks' minimum annual holiday to which all employees are now entitled under the Working Time Regulations.

Regulation 13(2) defines who has "parental responsibility" for a child. This is linked by reg.2 to the Children Act 1989. Section 3 of the Children Act defines "parental responsibility" as all the rights, duties, powers, responsibilities and authority which by law the parent of a child has in relation to the child and his property. Birth mothers are always regarded as having parental responsibility. Birth fathers are deemed by the Parental Leave Regulations to have parental responsibility, even if they were not married to the mother, so long as they are registered as the child's father on its birth certificate. This applies even if they are no longer living with the child.

Non-parents, however, can acquire parental responsibility only if they are made a guardian of the child or if there is a residence order in respect of the child. Thus, someone who marries one of the child's parents and shares in day-to-day care will not automatically be regarded as having parental responsibility. The step-parent can obtain parental responsibility only by acquiring a residence order or being made a guardian. It follows that those who merely cohabit with a birth parent are not entitled on that basis to parental leave.

The default provisions in Schedule 2 specify that an employee's parental leave entitlement is dependent on providing evidence, if requested, of their responsibility for the child in respect of whom the employee proposes to take parental leave, and of the child's date of birth or, in the case of adoption, the date of placement.

Regulation 13(1) defines the entitlement to parental leave as one of being "absent from work on parental leave for the purpose of caring for that child." There is no mechanism laid down for the employer to verify that this is genuinely the reason why the employee wants time off work - and that it is not to care for an older child, for example. But, presumably, if the employer is convinced that the request was not bona fide, it can turn it down and tell the employee that he or she has not met the qualifying conditions.

Extent of entitlement

14.-

(1)An employee is entitled to thirteen weeks' leave in respect of any individual child.

(2)Where the period for which an employee is normally required, under his contract of employment, to work in the course of a week does not vary, a week's leave for the employee is a period of absence from work which is equal in duration to the period for which he is normally required to work.

(3)Where the period for which an employee is normally required, under his contract of employment, to work in the course of a week varies from week to week or over a longer period, or where he is normally required under his contract to work in some weeks but not in others, a week's leave for the employee is a period of absence from work which is equal in duration to the period calculated by dividing the total of the periods for which he is normally required to work in a year by 52.

(4)Where an employee takes leave in periods shorter than the period which constitutes, for him, a week's leave under whichever of paragraphs (2) and (3) is applicable in his case, he completes a week's leave when the aggregate of the periods of leave he has taken equals the period constituting a week's leave for him under the applicable paragraph.

The amount of parental leave provided by the employer must be at least 13 weeks for each of the employee's children born after 15 December. In the case of multiple births, 13 weeks' leave must be provided in respect of each child. In the case of people who work part-time, the leave will be in proportion to the time worked.

Regulation 14(4) provides that where an employee takes less than a week's leave, he completes a week's leave when the total of the leave he has taken equals a week. This is straightforward in itself, but not easy to reconcile with para.7 of the default provisions which provides that the minimum period of parental leave is one week. Presumably, reg.14(4) only operates where the default provisions do not apply and there is an agreement that leave can be taken in chunks fewer than a week at a time.

The Government has made much of the fact that there is no legal responsibility on the employer to keep records relating to an employee's parental leave entitlement. According to the DTI, this is part of the Government's "commitment to minimising red tape." Some might regard this as a mixed blessing. As we have seen, a person's entitlement to parental leave is in respect of their particular child. When you change jobs, you keep your entitlement to up to 13 weeks parental leave, less any that you have used with your former employer, although you cannot exercise your right with a new employer until you have one year's service with that employer.

Many employers, when taking on staff, will want to know how many weeks parental leave entitlement they have left. If there was a record-keeping system, this information could be requested from the previous employer, but in the absence of any obligation to keep records, it must be doubtful whether this will now prove to be an accurate source. As time goes on, this is likely to be of increasing significance. When the right to parental leave is fully phased in, there will be some job applicants who have two children in the 0-4 age group - so that they will have a potential of up to 26 weeks' leave entitlement once they have got one year's service with the new employer.

Note that the right to parental leave is an individual one and will be non-transferable. This means that both parents will be able to take up to 13 weeks' leave if both are working, but they will not be able to add together their leave entitlements so that one worker can take more than 13 weeks and the other less. This is clearly designed to encourage fathers to take parental leave - if a man doesn't use his parental leave, it will simply go to waste. According to the Minister for Competitiveness, Mr Alan Johnson, the Government are "expecting 75,000 fathers" to take up the right to parental leave. This appears to relate to the number of eligible fathers taking some parental leave over a five-year period.

When parental leave may be taken

15. An employee may not exercise any entitlement to parental leave in respect of a child-

(a)except in the cases referred to in paragraphs (b) to (d), after the date of the child's fifth birthday;

(b)in a case where the child is entitled to a disability living allowance, after the date of the child's eighteenth birthday;

(c)in a case where the child was placed with the employee for adoption by him (other than a case where paragraph (b) applies), after-

(i)the fifth anniversary of the date on which the placement began, or

(ii)the date of the child's eighteenth birthday,

whichever is the earlier.

(d)in a case where-

(i)the provisions set out in Schedule 2 apply, and

(ii)the employee would have taken leave on or before a date or anniversary referred to in paragraph (a) to (c) but for the fact that the employer postponed it under paragraph 6 of that Schedule,

after the end of the period to which the leave was postponed.

The right to parental leave runs out on a child's fifth birthday, except where the child is adopted or is entitled to a disability living allowance.

The provisions in respect of adoptive parents reflect the age at which children are adopted. In this case, the right will last for five years from the date on which the child is placed for adoption or the child's 18th birthday, whichever is the earlier.

After the consultation process, the Government also extended the rights of parents of disabled children born after 15 December by providing that they can use their entitlement of up to 13 weeks leave up until the child's 18th birthday rather than the 5th birthday. This applies to children in receipt of a disability living allowance.

Default provisions in respect of parental leave

16. The provisions set out in Schedule 2 apply in relation to parental leave in the case of an employee whose contract of employment does not include a provision which-

(a)confers an entitlement to absence from work for the purpose of caring for a child, and

(b)incorporates or operates by reference to all or part of a collective agreement or workforce agreement.

The default provisions in Schedule 2 provide a minimum standard. It will be open to employers to improve upon the default provisions, for example in respect of how much notice the employee should give, the circumstances in which postponement of leave will be acceptable, and whether leave can be taken in periods shorter than one week. The intention is to give employers some flexibility and encourage tailor-made policies. Employers will need to decide whether they take advantage of this or whether they will apply the default provisions.

Regulation 16 states that in order for the default provisions not to operate, the employee's contract of employment must not only make provision for parental leave, but that provision must be derived from a collective or workforce agreement. Where the default provisions operate in the absence of a collective or workforce agreement, it is still open to an employer to agree a parental leave policy individually with the employee or impose it unilaterally. But such a policy could not be less favourable in any respect than the default provisions.

Part IV - Provisions applicable in relation to more than one kind of absence

Application of terms and conditions during periods of leave

17.-

(1)An employee who takes additional maternity leave or parental leave-

(a)is entitled, during the period of leave, to the benefit of her employer's implied obligation to her of trust and confidence and any terms and conditions of her employment relating to-

(i)notice of the termination of the employment contract by her employer;

(ii)compensation in the event of redundancy, or

(iii)disciplinary or grievance procedures;

(b)is bound, during that period, by her implied obligation to her employer of good faith and any terms and conditions of her employment relating to-

(i)notice of the termination of the employment contract by her;

(ii)the disclosure of confidential information;

(iii)the acceptance of gifts or other benefits, or

(iv)the employee's participation in any other business.

This Regulation confirms that there is no statutory requirement that either parental leave or additional maternity leave should be paid leave, though employers may provide some paid parental leave as a contractual right. This is most commonly the case currently with paternity leave.

Regulation 17 sets out the terms and conditions which do have to be maintained during parental leave. They are the same for additional maternity leave. Essentially, they are the fundamental terms necessary for the contract to continue, such as the implied obligation of mutual trust and confidence, restrictive covenants and duties of nondisclosure, and any contractual terms relating to disciplinary or grievance procedures. This makes clear that employees continue to be employed when they are off work during additional maternity leave and parental leave. However, unless the employer plans to dismiss an employee on parental leave or additional maternity leave, none of these provisions cost any money.

Right to return after additional maternity leave or parental leave

18.-

(1)An employee who takes parental leave for a period of four weeks or less, other than immediately after taking additional maternity leave, is entitled to return from leave to the job in which she was employed before her absence.

(2)An employee who takes additional maternity leave, or parental leave for a period of more than four weeks, is entitled to return from leave to the job in which she was employed before her absence, or, if it is not reasonably practicable for the employer to permit her to return to that job, to another job which is both suitable for her and appropriate for her to do in the circumstances.

(3)An employee who takes parental leave for a period of four weeks or less immediately after additional maternity leave is entitled to return from leave to the job in which she was employed before her absence unless -

(a)it would not have been reasonably practicable for her to return to that job if she had returned at the end of her additional maternity leave period,

and

(b)it is not reasonably practicable for the employer to permit her to return to that job at the end of her period of parental leave;

otherwise, she is entitled to return to another job which is both suitable for her and appropriate for her to do in the circumstances.

(4)Paragraphs (2) and (3) do not apply where regulation 10 applies.

(5)An employee's right to return under paragraph (1), (2) or (3) is to return-

(a)on terms and conditions as to remuneration not less favourable than those which would have been applicable to her had she not been absent from work at any time since-

(i)in the case of an employee returning from additional maternity leave (or parental leave taken immediately after additional maternity leave), the commencement of the ordinary maternity leave period which preceded her additional maternity leave period, or

(ii)in the case of an employee returning from parental leave (other than parental leave taken immediately after additional maternity leave), the commencement of the period of parental leave;

(b)with her seniority, pension rights and similar rights as they would have been if the period or periods of her employment prior to her additional maternity leave period, or (as the case may be) her period of parental leave, were continuous with her employment following her return to work (but subject, in the case of an employee returning from additional maternity leave, to the requirements of paragraph 5 of Schedule 5 to the Social Security Act 1989(a) (equal treatment under pension schemes: maternity)), and

(c)otherwise on terms and conditions not less favourable than those which would have been applicable to her had she not been absent from work after the end of her ordinary maternity leave period or (as the case may be) during her period of parental leave.

The Regulations confer a right to return after parental leave. These provisions are different from those originally proposed. An employee who takes parental leave for a period of four weeks or less, other than immediately after additional maternity leave, will be entitled to return from leave to the job in which she was employed before her absence. "Job", as we noted above under reg.2, does not necessarily mean precisely the same post. It is defined as "the nature of the work which she is employed to do in accordance with her contract and the capacity and place in which she is so employed." This means that the scope of the "job" which the employee could be asked to do under his or her contract if they were not on parental leave determines the scope of the job which they must be given when they return from their leave.

An employee who takes parental leave for a period of more than four weeks is in the same position as a woman returning from additional maternity leave. She is entitled to return from leave to the job in which she was employed before her absence, or, if that is not reasonably practicable, to "another job which is both suitable for her and appropriate for her to do in the circumstances."

Where a woman adds less than four weeks' parental leave to her additional maternity leave, she gets a little bit more protection. She is entitled to return from leave to the job in which she was employed before her absence unless it would not have been reasonably practicable for her to return to that job if she had returned at the end of her additional maternity leave period, and it is still not reasonably practicable for the employer to permit her to return to that job at the end of her period of parental leave. If those conditions apply, she is entitled to return to another job which is both suitable for her and appropriate for her to do in the circumstances.

The general principle is that employees are entitled to return from parental leave or additional maternity leave on terms and conditions as to remuneration not less favourable than those which would have been applicable to her had she not been absent from work during the relevant period. This means that seniority and pension rights are to be treated as continuous during the period of additional maternity leave and parental leave, although the actual leave period does not count as service (pension rights continue to accrue during ordinary maternity leave).

Protection from detriment

19.-

(1)An employee is entitled under section 47C of the 1996 Act not to be subjected to any detriment by any act, or any deliberate failure to act, by her employer done for any of the reasons specified in paragraph (2).

(2)The reasons referred to in paragraph (1) are that the employee-

(a)is pregnant;

(b)has given birth to a child;

(c)is the subject of a relevant requirement, or a relevant recommendation, as defined by section 66(2) of the 1996 Act;

(d)took, sought to take or availed herself of the benefits of, ordinary maternity leave;

(e)took or sought to take-

(i)additional maternity leave;

(ii)parental leave, or

(iii)time off under section 57A of the 1996 Act;

(f)declined to sign a workforce agreement for the purposes of these Regulations, or

(g)being-

(i)a representative of members of the workforce for the purposes of Schedule 1, or

(ii)a candidate in an election in which any person elected will, on being elected, become such a representative,

performed (or proposed to perform) any functions or activities as such a representative or candidate.

(3)For the purposes of paragraph (2)(d), a woman avails herself of the benefits of ordinary maternity leave if, during her ordinary maternity leave period, she avails herself of the benefits of any of the terms and conditions of her employment preserved by section 71 of the 1996 Act during that period.

(4)Paragraph (1) does not apply in a case where the detriment in question amounts to dismissal within the meaning of Part X of the 1996 Act.

(5)Paragraph (2)(b) only applies where the act or failure to act takes place during the employee's ordinary or additional maternity leave period.

(6)For the purposes of paragraph (5)-

(a)where an act extends over a period, the reference to the date of the act is a reference to the last day of that period, and

(b)a failure to act is to be treated as done when it was decided on.

(7)For the purposes of paragraph (6), in the absence of evidence establishing the contrary an employer shall be taken to decide on a failure to act-

(a)when he does an act inconsistent with doing the failed act, or

(b)if he has done no such inconsistent act, when the period expires within which he might reasonably have been expected to do the failed act if it were to be done.

The Regulations, together with new s.47C of the Employment Rights Act (found in Schedule 4, para.8 of the Employment Relations Act) provide a wide-ranging protection for employees against being subjected to any detriment for a pregnancy or maternity-related reason or by reason that they took - or sought to take - parental leave (or in connection with the new right to time off for dependants under new s.57A of the Employment Rights Act). These are "prescribed" reasons for the purpose of s.47C. Contravention of this section may be made the subject of a complaint to an employment tribunal.

'Detriment', in accordance with discrimination case law, is likely to be interpreted as meaning "placing at a disadvantage".

Thus, "an employee has the right not to be subjected to any detriment by any act … by her employer … done for … [the reason]that the employee … is pregnant … has given birth to a child … took … maternity leave or parental leave."

It has to be said that this section bears all the hallmarks of not having been adequately thought through. Women have often been placed at a disadvantage by reason of being off work due to pregnancy or maternity. Until now, this has been challenged via EU sex discrimination and equal pay law, but the trend of the cases has been to preclude discrimination claims on grounds that the position of a woman off work for maternity reasons is not comparable with that of a man off work for other reasons, or a man who is at work. See the European Court's decisions in Gillespie (EOR 66) and Boyle (EOR 83). These and other recent cases before the ECJ, however, are premised on the less favourable treatment of women on maternity leave, or employees on parental leave in the recent case of Lewen [2000] IRLR … As the European Court accepted in Abdoulaye [1999] IRLR 811, "a woman on maternity leave may not be proposed for promotion. On her return, her period of service will be reduced by the length of her absence; second, a pregnant woman may not claim performance-related salary increases; third, a female worker may not take part in training; lastly, since new technology is constantly changing the nature of jobs, the adaptation of a female worker returning from maternity leave becomes complicated."

The Maternity and Parental Leave Regulations require no comparison, merely a showing of detriment for the requisite reason. The issue is one of fact and causation. Nor do they contain any defence of justification. This presents considerable opportunity for litigation.

Unfair dismissal

20.-

(1)An employee who is dismissed is entitled under section 99 of the 1996 Act to be regarded for the purposes of Part X of that Act as unfairly dismissed if-

(a)the reason or principal reason for the dismissal is of a kind specified in paragraph (3), or

(b)the reason or principal reason for the dismissal is that the employee is redundant, and regulation 10 has not been complied with.

(2)An employee who is dismissed shall also be regarded for the purposes of Part X of the 1996 Act as unfairly dismissed if-

(a)the reason (or, if more than one, the principal reason) for the dismissal is that the employee was redundant;

(b)it is shown that the circumstances constituting the redundancy applied equally to one or more employees in the same undertaking who held positions similar to that held by the employee and who have not been dismissed by the employer, and

(c)it is shown that the reason (or, if more than one, the principal reason) for which the employee was selected for dismissal was a reason of a kind specified in paragraph (3).

(3)The kinds of reason referred to in paragraphs (1) and (2) are reasons connected with-

(a)the pregnancy of the employee;

(b)the fact that the employee has given birth to a child;

(c)the application of a relevant requirement, or a relevant recommendation, as defined by section 66(2) of the 1996 Act;

(d)the fact that she took, sought to take or availed herself of the benefits of, ordinary maternity leave;

(e)the fact that she took or sought to take-

(i)additional maternity leave;

(ii)parental leave, or

(iii)time off under section 57A of the 1996 Act;

(f)the fact that she declined to sign a workforce agreement for the purposes of these Regulations, and

(g)the fact that the employee, being-

(i)a representative of members of the workforce for the purposes of Schedule 1, or

(ii)a candidate in an election in which any person elected will, on being elected, become such a representative,

performed (or proposed to perform) any functions or activities as such a representative or candidate.

(4)Paragraphs (1)(b) and (3)(b) only apply where the dismissal ends the employee's ordinary or additional maternity leave period.

(5)Paragraph (3) of regulation 19 applies for the purposes of paragraph (3)(d) as it applies for the purpose of paragraph (2)(d) of that regulation.

(6)Paragraph (1) does not apply in relation to an employee if-

(a)immediately before the end of her additional maternity leave period (or, if it ends by reason of dismissal, immediately before the dismissal) the number of employees employed by her employer, added to the number employed by any associated employer of his, did not exceed five, and

(b)it is not reasonably practicable for the employer (who may be the same employer or a successor of his) to permit her to return to a job which is both suitable for her and appropriate for her to do in the circumstances or for an associated employer to offer her a job of that kind.

(7)Paragraph (1) does not apply in relation to an employee if-

(a)it is not reasonably practicable for a reason other than redundancy for the employer (who may be the same employer or a successor of his) to permit her to return to a job which is both suitable for her and appropriate for her to do in the circumstances;

(b)an associated employer offers her a job of that kind, and

(c)she accepts or unreasonably refuses that offer.

(8)Where on a complaint of unfair dismissal any question arises as to whether the operation of paragraph (1) is excluded by the provisions of paragraph (6) or (7), it is for the employer to show that the provisions in question were satisfied in relation to the complainant.

Section 99 of the Employment Rights Act as amended provides that it is automatically unfair to dismiss an employee for a reason which "relates" to pregnancy, childbirth or maternity; ordinary, compulsory or additional maternity leave; or parental leave. This is amplified by the Regulations which provide that an employee is to be regarded as unfairly dismissed if the "reason or principal reason for the dismissal is of a kind specified in para.3". Paragraph 3 defines these reasons as those "connected with", amongst other things, "(a) the pregnancy of the employee; (b) the fact that the employee has given birth to a child."

One issue yet to be resolved is that posed by the EAT's decision in Caledonia Bureau Investment & Property v Caffrey (EOR 78). This held that dismissal of a woman when she failed to return to work after maternity leave due to post-natal depression was for a reason connected with her pregnancy within the meaning of s.99, and therefore automatically unfair. According to the EAT in this case, s.99 covers the position where a pregnancy-related illness arises during the period of maternity leave, and that illness is the direct cause of dismissal in due course. It is not limited to dismissals occurring during the period of pregnancy and maternity leave. It applies after maternity leave has expired.

Regulation 20(4) specifies that dismissal for a reason connected with the fact that the employee has given birth to a child is automatically unfair only where "the dismissal ends the employee's ordinary or additional maternity leave period." This marked a change from the consultative draft and, presumably, is intended to indicate that a new mother has no special protection once the maternity leave period has ended (in the same way, as her special protection for sex discrimination purposes comes to an end, per the Hertz decision (EOR 35 ) of the ECJ.

The key example is post-natal depression. It seems clear that the Regulations are not intended to make it automatically unfair to dismiss a woman for absence resulting from post-natal depression after she has returned to work from maternity leave. But this presupposes that the post-natal depression is a reason connected with child-birth rather than pregnancy, contrary to what the EAT held in Caffrey. The issue would have been put beyond doubt had the Government included pregnancy-related reasons in the limitation.

As it stands, unless and until it is disagreed with by an appellate court, tribunals will still be faced with the Caffrey decision. In any event, moreover, the wording of reg.20, and the absence of any cut-off point in respect of pregnancy-related illnesses, appears to mean that a woman who during her pregnancy develops complications leading to chronic illness or disability, as opposed to it developing during childbirth or after, has permanent unfair dismissal protection against being dismissed for any reason connected with this condition.

Contractual rights to maternity or parental leave

21.-

(1)This regulation applies where an employee is entitled to-

(a)ordinary maternity leave;

(b)additional maternity leave, or

(c)parental leave,

(referred to in paragraph (2) as a "statutory right") and also to a right which corresponds to that right and which arises under the employee's contract of employment or otherwise.

(2)In a case where this regulation applies-

(a)the employee may not exercise the statutory right and the corresponding right separately but may, in taking the leave for which the two rights provide, take advantage of whichever right is, in any particular respect, the more favourable, and

(b)the provisions of the 1996 Act and of these Regulations relating to the statutory right apply, subject to any modifications necessary to give effect to any more favourable contractual terms, to the exercise of the composite right described in sub-paragraph (a) as they apply to the exercise of the statutory right.

This is the standard statutory provision creating a composite right, allowing an employee to exercise whichever is the more favourable, "in any particular respect", of their contractual or statutory rights with regard to maternity or parental leave.

Calculation of a week's pay

22. Where-

(a)under Chapter II of Part XIV of the 1996 Act, the amount of a week's pay of an employee falls to be calculated by reference to the average rate of remuneration, or the average amount of remuneration, payable to the employee in respect of a period of twelve weeks ending on a particular date (referred to as "the calculation date");

(b)during a week in that period, the employee was absent from work on ordinary or additional maternity leave or parental leave, and

(c)remuneration is payable to the employee in respect of that week under her contract of employment, but the amount payable is less than the amount that would be payable if she were working,

that week shall be disregarded for the purpose of the calculation and account shall be taken of remuneration in earlier weeks so as to bring up to twelve the number of weeks of which account is taken.

This provision ensures that in calculating a "week's pay" for statutory purposes, a week during which the employee receives reduced pay by virtue of being on maternity or parental leave is to be disregarded.

Schedule 1 - Workforce Agreements

1. An agreement is a workforce agreement for the purposes of these Regulations if the following conditions are satisfied-

(a)the agreement is in writing;

(b)it has effect for a specified period not exceeding five years;

(c)it applies either-

(i)to all of the relevant members of the workforce, or

(ii)to all of the relevant members of the workforce who belong to a particular group;

(d)the agreement is signed-

(i)in the case of an agreement of the kind referred to in sub-paragraph (c)(i), by the representatives of the workforce, and in the case of an agreement of the kind referred to in sub-paragraph (c)(ii), by the representatives of the group to which the agreement applies (excluding, in either case, any representative not a relevant member of the workforce on the date on which the agreement was first made available for signature), or

(ii)if the employer employed 20 or fewer employees on the date referred to in sub-paragraph (d)(i), either by the appropriate representatives in accordance with that sub-paragraph or by the majority of the employees employed by him;

and

(e)before the agreement was made available for signature, the employer provided all the employees to whom it was intended to apply on the date on which it came into effect with copies of the text of the agreement and such guidance as those employees might reasonably require in order to understand it in full.

2. For the purposes of this Schedule-

"a particular group" is a group of the relevant members of a workforce who undertake a particular function, work at a particular workplace or belong to a particular department or unit within their employer's business;

"relevant members of the workforce" are all of the employees employed by a particular employer, excluding any employee whose terms and conditions of employment are provided for, wholly or in part, in a collective agreement;

"representatives of the workforce" are employees duly elected to represent the relevant members of the workforce, "representatives of the group" are employees duly elected to represent the members of a particular group, and representatives are "duly elected" if the election at which they were elected satisfied the requirements of paragraph 3 of this Schedule.

3. The requirements concerning elections referred to in paragraph 2 are that-

(a)the number of representatives to be elected is determined by the employer;

(b)the candidates for election as representatives of the workforce are relevant members of the workforce, and the candidates for election as representatives of a group are members of the group;

(c)no employee who is eligible to be a candidate is unreasonably excluded from standing for election;

(d)all the relevant members of the workforce are entitled to vote for representatives of the workforce, and all the members of a particular group are entitled to vote for representatives of the group;

(e)the employees entitled to vote may vote for as many candidates as there are representatives to be elected, and

(f)the election is conducted so as to secure that-

(i)so far as is reasonably practicable, those voting do so in secret, and

(ii)the votes given at the election are fairly and accurately counted.

The default provisions set out in the Regulations will operate if there is no collective or workforce agreement on parental leave. Collective agreement means an agreement with an "independent" trade union, within the meaning of the Trade Union and Labour Relations (Consolidation) Act 1992.

A workforce agreement is an agreement negotiated with elected representatives of the workforce. Schedule 1 reproduces the identical language of Schedule 1 to the Working Time Regulations.

Note that para.2 excludes from the potential scope of a workforce agreement "any employee whose terms and conditions of employment are provided for, wholly or in part, in a collective agreement." This is not restricted to terms and conditions relating to maternity or parental leave: it means any terms, including where a term of a collective agreement is incorporated expressly or by implication into the contract of employment.

A workforce agreement must apply to all the workforce, or it must apply to a "particular group". This is defined by function. It would seem that an employer can have a series of workforce agreements by function, but cannot link departments engaged on different functions in the absence of a single agreement.

Small employers with 20 or fewer employees can sign up a majority of the workforce to a workforce agreement rather than deal with employee representatives.

Schedule 2 - Default provisions in respect of parental leave

Conditions of entitlement

1. An employee may not exercise any entitlement to parental leave unless-

(a)he has complied with any request made by his employer to produce for the employer's inspection evidence of his entitlement, of the kind described in paragraph 2;

(b)he has given his employer notice, in accordance with whichever of paragraphs 3 to 5 is applicable, of the period of leave he proposes to take, and

(c)in a case where paragraph 6 applies, his employer has not postponed the period of leave in accordance with that paragraph.

2. The evidence to be produced for the purpose of paragraph 1(a) is such evidence as may reasonably be required of-

(a)the employee's responsibility or expected responsibility for the child in respect of whom the employee proposes to take parental leave;

(b)the child's date of birth or, in the case of a child who was placed with the employee for adoption, the date on which the placement began, and

(c)in a case where the employee's entitlement to parental leave under regulation 15, or to take a particular period of leave under paragraph 7, depends upon whether the child is entitled to a disability living allowance, the child's entitlement to that allowance.

Notice to be given to employer

3. Except in a case where paragraph 4 or 5 applies, the notice required for the purpose of paragraph 1(b) is notice which-

(a)specifies the dates on which the period of leave is to begin and end, and

(b)is given to the employer at least 21 days before the date on which that period is to begin.

4. Where the employee is the father of the child in respect of whom the leave is to be taken, and the period of leave is to begin on the date on which the child is born, the notice required for the purpose of paragraph 1(b) is notice which-

(a)specifies the expected week of childbirth and the duration of the period of leave, and

(b)is given to the employer at least 21 days before the beginning of the expected week of childbirth.

5. Where the child in respect of whom the leave is to be taken is to be placed with the employee for adoption by him and the leave is to begin on the date of the placement, the notice required for the purpose of paragraph 1(b) is notice which-

(a)specifies the week in which the placement is expected to occur and the duration of the period of leave, and

(b)is given to the employer at least 21 days before the beginning of that week , or, if that is not reasonably practicable, as soon as is reasonably practicable.

Postponement of leave

6. An employer may postpone a period of parental leave where-

(a)neither paragraph 4 nor paragraph 5 applies, and the employee has accordingly given the employer notice in accordance with paragraph 3;

(b)the employer considers that the operation of his business would be unduly disrupted if the employee took leave during the period identified in his notice;

(c)the employer agrees to permit the employee to take a period of leave-

(i)of the same duration as the period identified in the employee's notice, and

(ii)beginning on a date determined by the employer after consulting the employee, which is no later than six months after the commencement of that period;

(d)the employer gives the employee notice in writing of the postponement which-

(i)states the reason for it, and

(ii)specifies the dates on which the period of leave the employer agrees to permit the employee to take will begin and end,

and

(e)that notice is given to the employee not more than seven days after the employee's notice was given to the employer.

Minimum periods of leave

7. An employee may not take parental leave in a period other than the period which constitutes a week's leave for him under regulation 14 or a multiple of that period, except in a case where the child in respect of whom leave is taken is entitled to a disability living allowance.

Maximum annual leave allowance

8. An employee may not take more than four weeks' leave in respect of any individual child during a particular year.

9. For the purposes of paragraph 8, a year is the period of twelve months beginning-

(a)except where sub-paragraph (b) applies, on the date on which the employee first became entitled to take parental leave in respect of the child in question, or

(b)in a case where the employee's entitlement has been interrupted at the end of a period of continuous employment, on the date on which the employee most recently became entitled to take parental leave in respect of that child,

and each successive period of twelve months beginning on the anniversary of that date.

By imposing a 21-day notice requirement and providing for leave in minimum blocks of one week, the default provisions make clear that parental leave will not normally be appropriate for employees who wish to take time off to care for a sick child. This, instead, is catered for by the new right to time off for family emergencies, which also came into force on 15 December (see EOR 87). Indeed, aside from fathers taking paternity leave and some mothers extending their maternity leave period, it is not easy to envisage the circumstances which will inspire an employee to give at least three weeks' notice of an intention to take a block of unpaid leave.

The default provisions impose both a minimum period of parental leave and a maximum annual parental leave allowance. Paragraph 7 specifies that an employee may not take parental leave in periods of less than a week (although parents of disabled children are exempted from this rule, and thus can take leave in units of one day). The general rule, however, means that the provisions cannot be used to convert a five-day job into a four-day one for a temporary period after returning from maternity leave, such as by taking a day's leave each week over 65 weeks.

The default provisions also provide a maximum annual leave allowance of four weeks in respect of any individual child during a particular year. A year for this purpose is defined as a period of 12 months beginning with the date on which the employee first became entitled to take parental leave in respect of the child in question, or where the employee's entitlement was interrupted because their continuous employment came to an end, the date the employee most recently became entitled to take parental leave in respect of that child. This means that entitlement must revolve around the relevant year for an individual rather than the employer's holiday year, which may prove to be an administrative inconvenience in some organisations. Of course, it is open to employers not to apply the default provisions and to allow employees to take more than four weeks' parental leave in any year, or to take the leave in smaller blocks than one week.

The default provisions lay down notification rules for exercising the right to parental leave. These were somewhat simplified from the consultative draft. The general principle is that 21 days' notice must be given of the dates on which the period of leave is to begin and end.

The employer is given a right to postpone an employee's parental leave, except in case of paternity leave or where a child has been placed with the employee for adoption, where the right to leave cannot be postponed so long as the requisite 21 days' notice has been given. In other cases, the default provisions allow the employer to postpone the leave for up to six months on grounds that "the employer considers that the operation of his business would be unduly disrupted if the employee took leave during the period identified in his notice." This is a relaxation of the criteria originally proposed which referred to the employer's business being "substantially prejudiced". The DTI guide gives as examples of when an employer may be justified in postponing leave when "the work is at a seasonal peak" or "where a significant proportion of the workforce applies for parental leave at the same time."

If leave is postponed, the employer must give the employee notice in writing stating the reason, and leave of the same duration must be given within six months.