Staying in touch - maternity legislation amendments

XpertHR's managing editor Jo Stubbs provides some answers to your questions on the draft regulations to amend maternity leave and flexible working eligibility.

On 31 January the government published a consultation on draft regulations designed to amend the current regulations on maternity and adoption leave and those on eligibility for flexible working. The consultation is available on the DTI website and responses are requested by 18 April 2006. XpertHR looks at the government's proposals and sets out the issues on which opinions are being sought.

Q How will the additional maternity leave eligibility requirements change?

While at present only those employees with at least six months' service at the 15^th week before the expected week of childbirth qualify for additional maternity leave (AML), the government intends to remove this requirement from the Maternity and Parental Leave, etc, Regulations 1999, so that all pregnant employees who qualify for ordinary maternity leave (OML) will also qualify for AML. This means that all qualifying mothers will be able to take advantage of the forthcoming extension of the statutory maternity pay period from 26 weeks to 39 weeks. Draft regulations extending the maternity pay period are expected to be issued shortly.

Q Does this mean that there will no longer be a distinction between OML and AML?

No. Although, in its 2005 consultation document Work and Families: Choice and Flexibility, the government asked whether it would be preferable to abolish AML completely, it made it clear in its response to the consultation that it had decided against removing the distinction between the two types of maternity leave. This was due to a desire on the part of employers to retain the different rights of return that exist at the end of the two types of leave, along with concerns about the cost of extending non-pay contractual benefits such as company cars to women for the second part of statutory maternity leave.

Q What provision for periods of work during maternity leave is proposed?

The draft Maternity and Parental Leave (Amendment) Regulations 2006 provide for an employee on maternity leave to agree to work for her employer for a limited number of days without bringing her maternity leave period to an end. 'Work' for these purposes means any work done under the employment contract and can include training or other activities undertaken for the purpose of keeping in touch with the workplace.

These 'keeping in touch days' will be by arrangement between the employer and the employee, with the employer having no right to demand that work is undertaken and the employee having no right to be offered any work. The government is asking for views on the total number of keeping in touch days that should be permitted, and whether they should be limited to a particular period during maternity leave.

There is to be similar provision for keeping in touch days for employees on adoption leave.

Q Will the new rules affect the notice period for an early return from maternity leave?

Yes. At present, while a woman is not required to forewarn her employer if she intends to return to work the day after her maternity leave ends, she must give at least 28 days' notice if she wishes to return to work at an earlier date. The draft amendment regulations extend this period to eight weeks' notice. The same extension will apply to employees wishing to return early from adoption leave.

Q Which employees will be affected by the amendments?

The new rules will affect those employees with an expected week of childbirth beginning on or after 1 April 2007, along with those who expect to have a child placed with them for adoption on or after this date.

Q What amendments to the flexible working legislation are proposed?

The government intends to extend the right to request flexible working, currently enjoyed by the parents of young children, to those employees who have caring responsibilities for adults. It proposes to define the right by the relationship between the employee and the person in need of care, rather than creating a statutory definition of 'care'. Spouses, partners and civil partners will be covered by the legislation, but views are being sought on which other relatives should be covered.

Under the first proposed 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 this would result in 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.

It is proposed that the definition of 'carer' will also include employees who care for an adult who is not a spouse, partner or relative but lives at the same address as the employee.

Q Will the amendments have any effect on the current rules for parents of young children?

Yes. At present an employee's request for flexible working must be made at least 15 days before the child's sixth birthday (or 18^th birthday where the child is disabled), a rule introduced in response to concerns that parents would leave their flexible working requests until the last minute. However, as there is no evidence that this is the case, the government plans to simplify the legislation so that any request for flexible working will have to be made before the child's sixth (or 18^th) birthday.

Q When will the new right for carers come into force?

The Flexible Working (Eligibility, Complaints and Remedies) (Amendment) Regulations are due to come into force on 6 April 2007.

Work and Families Choice and Flexibility: Draft Regulations on Maternity and Adoption Leave and Flexible Working (PDF format, 272K)

An outline of the proposals

Extension of the statutory maternity and adoption paid leave from six to nine months will come into effect for employees where the expected week of childbirth is on or after 1 April 2007.

Removal of qualifying criteria for Additional Maternity Leave so that all mothers will be able to take up to one year off work.

Increase in the notice period mothers must give to employers if they change their return dates, from 28 days to eight weeks.

Optional 'keeping in touch days' to give employees the chance to go into work or undertake training and keep in touch with major developments without losing their right to maternity pay.

Reasonable contact - employers will have a right to make reasonable contact with their employee during maternity leave - guidance will make clear what is meant by this.

Any day start period for Maternity Pay Period to help to align the leave with the pay period.

Option for Statutory Maternity Pay to be paid on a daily rather than a weekly basis.