Changes to maternity leave

Executive Summary

New provisions governing maternity leave came into force on 15th December 1999.

• provisions have effect only where week of childbirth begins on or after 30 April 2000
• ordinary maternity leave is now 18 weeks
• employee is not required to notify the employer that she intends to return to work at the end of OML
• neither employer nor employee has a right to extend additional maternity leave
• employee needs only to have accrued one year’s service to qualify for additional maternity leave

The “family friendly” content of the Employment Relations Act 1999 (ERA 1999) derives, in part, from the fact that the Government was obliged to implement the EU Parental Leave Directive (96/34/EC) by 15 December 1999 and is required to implement the Part Time Work Directive (97/81/EC) by 7 April 2000.  However, the Act also makes important changes to the law governing maternity leave and the return to work thereafter, although much of the detail is to be found in The Maternity and Parental Leave etc Regulations (S.I. 1999 No.3312) which came into force on 15 December 1999.

One of the most noticeable features of the 1999 Act, which operates by inserting new sections into or amending the provisions of the Employment Rights Act 1996 (“ERA 1996”), is the amount which it leaves to implementation by means of Regulations.  For example, while the previous provisions of the ERA 1996 dealt specifically with redundancy and dismissal for other reasons arising during maternity leave, the new provisions make these areas subject to Regulations (new s.74 1996 Act).  Regulations will also be used henceforth to deal with provisions about maternity related notices, evidence to be produced by the employee, the consequences of failing to give appropriate notice of impending maternity leave or to comply with other procedural requirements and overlap between statutory and contractual provisions governing maternity or other family related leave.

Specifically, section 7 ERA 1999 substitutes the provisions found in Part I of Schedule 4 of the Act for Part VIII Employment Rights Act 1996.

New Part VIII of the Employment Rights Act 1996 deals with the following subject areas:

Maternity Leave (Sections 71 to 75 inclusive)Parental Leave (Sections 76 to 80 inclusive)

In addition, section 8 of the 1999 Act inserts the provisions found in Part II of Schedule 4 into the 1996 Act.  In essence, new sections 57A and 57B are inserted into the 1996 Act which provide a right to time off to deal with emergencies of one kind or another relating to “dependants”.By dint of section 9 of the 1999 Act Part III of Schedule 4 makes extensive consequential amendments to various pieces of legislation.

Maternity leave and related matters

The provisions in relation to maternity leave have effect only in relation to employees whose expected week of childbirth (“EWC”) begins on or after 30 April 2000.

The new provisions specify 3 types of maternity leave:

• Ordinary
• Compulsory
• Additional

Ordinary maternity leave

The new s71 introduces the concept of “ordinary maternity leave” (“OML”).  In essence, this is the minimum period of maternity leave to which all women are entitled irrespective of length of service.  Previously, the minimum period allowed was 14 weeks but, as a result of the provisions of new s71(3) ERA 1996 and Regulation 7 OML is now 18 weeks for all women with an EWC on or after 30 April 2000, irrespective of length of service, unless the end of the “compulsory maternity leave” period would be later in which case OML will end when the compulsory leave period ends.  This provision, thankfully, means that the period of OML is the same length as the period of time over which women are entitled to Statutory Maternity Pay (SMP).

Regulation 4 makes entitlement to OML dependent upon satisfaction of certain conditions:

At least 21 days before the date on which the woman intends to start her OML (or, if that is not reasonably practicable, as soon as reasonably practicable) she notifies the employer:

• (a) That she is pregnant (note, this does not have to be notification in writing, unlike the previous provisions in the 1996 Act)
• (b) Of the EWC (by means of a medical certificate if the employer requests one) - same as previous provisions
• (c) Of the date on which her OML is to commence (in writing if the employer requests this) - same as previous provisions.

Regulation 4(2) makes it clear that OML cannot begin before the start of the eleventh week before the EWC (same as before) while Regulation 6(1) (b) specifies that OML will commence automatically on the first day after the beginning of the sixth week before the EWC on which the woman is absent wholly or partly because of pregnancy (same as before).  In the event that the woman gives birth before her maternity leave is due to commence it will start automatically on the day she gives birth (Reg. 6(2)).

The entitlement to OML is dependent upon the employee giving the employer (normally) at least 21 days notice of the date of commencement of her OML (Regulation 4(1)). Given the terms of Regulation 4 and the commentary within the consultation paper issued by the Government prior to the draft Regulations being issued, it can be inferred that when a woman fails to comply with the requirements of Regulation 4 the maternity leave will be delayed until 21 days after the correct notifications have been given.  A woman will not completely lose the right to OML simply because she makes an initial error in the notification procedure.  However, an employee who has not notified her employer of the date of commencement of maternity leave and who gives birth (most probably because the baby is premature) will forfeit the right to OML unless she notifies the employer as soon as reasonably practicable that she has given birth (Reg.4(4)). Similarly, an employee whose OML is triggered automatically as a result of pregnancy related absence in the six week period prior to the EWC is not entitled to OML unless she tells the employer that she is absent for such a reason as soon as reasonably practicable (Reg.4(3)).

Entitlement to benefit of terms and conditions while on OML

New section 71(4) and (5) ERA 1996 make it clear that while she is on OML a woman is entitled to the benefit of the terms and conditions of employment which would have applied -had she not been absent.  “Terms and conditions” is stated to include “matters connected with an employee’s employment whether or not they arise under her contract” (clarification which has been added - previous provisions simply referred to terms and conditions) but specifically excludes “remuneration”.

While the previous provisions gave no definition of “remuneration” Regulation 9 now defines it as “only sums payable to an employee by way of wages or salary”.  During the Committee Stage the Minister of State stated that “During ordinary maternity leave, contractual holiday arrangements accrue.  A period of ordinary maternity leave counts towards the qualifying period for statutory holidays under the Working Time Regulations”.

A woman is also bound by any obligations which arise under her terms and conditions during OML, except those which would be inconsistent with the fact that she is on maternity leave (section 71(4) (b) 1996 Act).

Return from OML

As with the previous provisions a woman is not required to notify her employer that she intends to return at the end of OML.  The legislation works on the basis that employer and employee will simply assume that she will be back at the end of the OML.  However, as before, if she wishes to return early from OML she must give her employer notice of this.  In the previous provisions the employee was required to give the employer 7 days notice of the early return.  Regulation 11(1) specifies that she will now have to give her employer 21 days notice of an early return.  If she does not do so the employer is entitled to postpone her return to the date which will ensure that he has received 21 days notice although this cannot be a date which is later than the end of the OML period (Reg. 11(2), (3)).  If an employee who is notified that her return date is postponed under these provisions decides to return before the “postponed” return day the employer is not obliged to pay her. (Reg.11(4)).

New section 71 specifies that she is entitled to return to the job in which she was employed before her absence on terms and conditions no less favourable than those which would have applied had she not been absent, including those relating to seniority and pension rights.  The employer is not able to argue that it was “not reasonably practicable” to allow her to return to the same job and to offer another suitable and appropriate job.

Compulsory maternity leave

By dint of new section 72 of the 1996 Act, read with Regulation 8, a woman must take two weeks “compulsory” maternity leave commencing with the date of birth of the child.  This requirement, which stems from the Pregnant Workers Directive (Directive 92/85/EEC), also formed part of the previous provisions, although it was rather more obscure, being found only in secondary legislation.  The new provisions perhaps make it rather more explicit that the onus is on the employer not to allow the woman “to work”.  As with the previous provisions an employer who breaches this requirement will be guilty of a criminal offence, punishable by a fine.  It is immaterial where the work is done or what it involves.

The period of compulsory leave is to fall within the OML period (section 72(3)).  If necessary, that period can be extended but it is difficult to envisage this being required since the baby would need to be more than five weeks overdue before such an extension would be necessary!

Additional maternity leave

Under the previous provisions women with two years’ service at the eleventh week before the EWC were entitled to the “right to return” to work within the period ending twenty nine weeks after the beginning of the week in which childbirth occurred.  This period will now be called “additional maternity leave” (AML) (new section 73 ERA 1996) and the period of service necessary to qualify for the right is reduced to one year (at the beginning of the eleventh week before the EWC) (Regulation 5).  The previous provisions made it difficult to determine whether women absent from work who had the “right to return” had a subsisting contract of employment at all.  In various cases it has been suggested that a “ghost” contract existed or that the contract of employment had been “suspended”.

In its Consultation paper the Government stated:

“At the moment it is unclear whether women on additional maternity leave are employees for legal purposes.  Nor is it clear which contractual benefits apply while a woman is on maternity leave.  The Government proposes that the contract of employment should continue throughout ordinary and additional maternity leave unless either party to the contract expressly ends it or it expires”.

This proposal has been carried through to the legislation.  Specifically, new section 73(1) ERA 1996 states that “an employee who satisfies prescribed conditions may be absent from work at any time during an additional maternity leave period”.  From the reference to “absent from work” rather than the “right to return” it can, perhaps, be implied that the contract is to subsist during this period.  However, that fact is made more explicit in section 73(4) which states that an employee:

• is entitled, for such purposes and to such extent as may be prescribed, to the benefit of the terms and conditions of employment which would have applied if she had not been absent,
• is bound, for such purposes and to such extent as may be prescribed, by obligations arising under those terms and conditions.
• is entitled to return from leave to a job of a prescribed kind.

Subsection (5) specifies that “terms and conditions of employment” include matters connected with the employee’s employment whether contractual or not but does not include “remuneration”.

In the Regulations the Government has significantly restricted the contractual rights and duties which will subsist during the AML period.  Specifically Regulation 17 states that an employee who takes additional maternity leave or parental leave will be entitled during the leave period 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:

• notice of the termination of the employment contract by her employer;
• compensation in the event of redundancy, or
• disciplinary or grievance procedures.

By implication an employee will not be entitled to other employment benefits during these periods unless her contract, expressly or by implication, specifies that such rights will continue during periods of AML or parental leave.

The employee will be bound, during such periods of leave, by her implied obligation to her employer of good faith and any terms and conditions of her employment relating to:

• notice of the termination of the employment contract by her;
• the disclosure of confidential information;
• the acceptance of gifts or other benefits.

Commencement of AML and notification requirements

AML will commence on the day after the last day of the OML period (Regulation 6(3)).  Under the previous provisions a woman who wished to exercise the right to return to work was required to notify her employer in writing that she intended to exercise her right to return prior to her maternity leave commencing.  Under the new provisions there is no requirement for the employee to inform her employer before her OML commences that she intends to exercise her right to AML.  It will be presumed that she intends to take her AML unless she notifies the employer of an intention to return early.

However, an employer is entitled to write to an employee no earlier than 21 days before the end of her OML period, asking her to notify him/her in writing of:

• the date on which childbirth occurred
• whether she intends to return to work after the AML period

The employee is required to respond within 21 days normally (reasonably practicable extension available) (Regulation 12).

The provisions of Regulations 19 and 20 (which, inter alia, protect the employee against detriment on the ground that she took AML (Reg.19) and provide for automatic unfair dismissal if the reason for the dismissal is connected to taking AML (Reg.20)) will not apply to employees who have failed to comply with a written request from their employer in terms of Regulation 12.A “Regulation 12 letter” must warn the employee of the above consequences of a failure to respond and it must also tell the employee how to calculate when her AML period will end.

In addition in the Consultation paper the Government proposed that, when a woman fails to respond to an employer’s request for the date of childbirth and confirmation that she is intending to return to work after AML the employer should be able to take “appropriate disciplinary action”.  However, there is no mention of this in the Regulations.

Under the previous provisions if an employer wrote to an employee asking her to confirm whether she intended to return and she failed to reply within 14 days she lost her statutory right to return.  This is no longer the case.

Notification of early return from AML

An employee who intends to return before the end of her AML must give her employer at least 21 days notice of her return, failing which the employer is entitled to delay the return until he/she has had 21 days notice of it, although he/she cannot postpone the return to a date beyond the end of the AME period (Regulation 11).

Can the return after AML be postponed other than in the above circumstances?

Under the previous provisions an employer could postpone the employee’s return after extended maternity absence by up to four weeks, subject to notifying her in advance of the reasons for this.  An employee was entitled to postpone her return for up to four weeks for medical reasons.  The new provisions do not allow for postponement on these grounds.  The Consultation paper states that if an employee is ill the “normal company rules on sick leave will apply”.

Return after AML — to what?

Regulation 18 specifies that:“An employee who takes additional maternity leave. is entitled to return from leave to the job in which she was employed before her absence or, if it 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”.

This gives the employer a degree of flexibility which is not available on return from OML.  The right is to return 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 from the commencement of OML.  So far as seniority, pension and similar rights are concerned these should be as they would have been had her employment prior to her AML been continuous with her employment following her return to work (subject to the requirement of equal treatment in relation to pensions in terms of the Social Security Act 1989).  In relation to other terms and conditions these should be no less favourable than those which would have applied had she not been on AML.

What happens if redundancy arises during the OML or AML periods?

Section 74 of the 1996 Act gives the Secretary of State power to make regulations to deal with redundancy arising during either of the maternity leave periods.

Regulation 10 applies where during the OML or AML period “it is not practicable by reason of redundancy” for a woman’s employer to continue to employ her under her existing contract of employment.

Regulation 10 specifies that 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 which is such that:

• 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
• 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.

In essence these provisions will have the same effect as those which were previously found in sections 71 and 88 ERA 1996 under which women on maternity leave or returning to work had to be offered alternative employment where the employer had a suitable available vacancy.

Right not to suffer detriment for pregnancy/maternity reasons

Employees are protected against subjection to a detriment or dismissal for prescribed reasons which include pregnancy, maternity and maternity leave.  Since these provisions are also relevant to parental leave they will be discussed more fully later.

Contractual right to OML/AML

Where an employee has contractual maternity leave rights which are better than the statutory rights she is entitled to the benefit of those (Regulation 21).

A “week’s pay” for the purposes of the ERA 1996

If there is any need to calculate a “week’s pay” for the purpose of the 1996 Act by averaging remuneration over a 12 week period then any week during that period in which an employee is absent from work on OML or AML or parental leave and is receiving less than she would have received if she had been at work is to be discounted for the purpose of the calculation (Regulation 22).

Shona Simon is a partner in Mackay Simon WS, employment law specialists