Maternity rights: the new provisions

Amanda Wright, whose own baby was born on 17th March, sets out the new maternity provisions The recent changes in the maternity legislation aimed to simplify the system for employees and employers. From a legal point of view some areas of confusion have been clarified, although the maternity provisions as a whole remain rather complex and cumbersome. Most of the changes apply only to women whose expected week of childbirth is the week commencing 30th April 2000 or later. However, the right to protection from detriment applies from 15th December 1999. The main changes are the following:

Renaming of the two periods of leave: “maternity leave” becomes “ordinary maternity leave” (OML) and “additional maternity absence” becomes “additional maternity leave” (AML);

Ordinary maternity leave is increased from 14 weeks to 18 weeks;

Additional maternity leave is available to women who have been continuously employed for one year rather than two years;

Provision is made for certain contractual rights and obligations to continue throughout the period of absence;

Employees are protected against suffering any detriment or victimisation from their employer because they are pregnant or have taken leave (which means that they no longer have to rely on bringing a sex discrimination claim in such instances).

Ordinary maternity leave (“OML”)

The major change is that all pregnant employees are now entitled to 18 weeks ordinary maternity leave, regardless of their length of service, which can start no earlier than the 11th week before the expected week of childbirth. This brings OML in line with statutory maternity pay which is payable for 18 weeks. From April 2000 the rate of SMP increases to £60.20 per week (from £59.55).

There are no changes in practice to the employee’s status during OML. The contract of employment continues except for terms relating to remuneration, which includes only basic wages or salary. This means that the employee must continue to receive all her contractual benefits which would have applied had she been at work except for salary. For example, she must continue to accrue holiday and to receive benefits such as company car, mobile phone, share scheme membership, health club membership and occupational pension rights. She would also be able to receive a performance bonus which is not salary. Seniority and pension rights must be restored as though the employee had not been absent.

The employee must still notify her employer at least 21 days before she intends to start her OML (and leave will still start automatically if the baby is born sooner or if she is absent due to a pregnancy-related illness after the sixth week before the expected week of childbirth). However, the 21 days notice no longer has to be in writing but can be verbal.

As before, the employee does not have to give advance notice if she intends to return to work immediately after the end of her OML.

Additional maternity leave (“AML”)

Employees who have completed one year’s continuous service by the 11th week before the expected week of childbirth will be entitled to AML of up to 29 weeks after childbirth. In the absence of any agreement to the contrary, the new legislation clarifies that the only terms and conditions of employment which will apply are the following:

The employer’s implied duty of trust and confidence (this probably includes keeping the employee properly informed of procedural requirements relating to her absence);

The employee’s implied obligation of good faith;

The contractual notice period applicable to employer and employee on termination;

Any contractual right to enhanced redundancy pay;

Any terms and conditions relating to the use of disciplinary and grievance procedures;

The employee is also bound by any existing terms and conditions relating to disclosure of confidential information, acceptance of gifts and participation in any other business.

During AML the employee is therefore not entitled to be paid or to receive benefits unless her contract of employment provides otherwise. She will be able to benefit from any general improvements to pay or benefits which have been introduced in her absence for employees of her grade or position.

AML will count towards the employee’s period of continuous employment for the purposes of accruing statutory rights. However, unlike OML, this period does not have to be counted for the purpose of assessing rights based on length of service such as pay increments or pension rights (although the rules of the pension scheme may well set out whether occupational pension rights continue to accrue and on what basis). Employees taking AML may also be able to accrue holiday leave (i.e. the statutory right to 4 weeks holiday) under the Working Time Regulations.

To exercise her right to AML, the employee no longer has to inform her employer that she will be doing so: the presumption is that she will. However, the employer may write to an employee no earlier than 21 days before the end of her OML asking her to give notice in writing of the date of the baby’s birth and whether she is still intending to return to work. The employer’s letter must include a statement explaining how to work out the last date of her AML and a warning that failure to respond to the letter will mean that she is not protected against dismissal or detriment on the grounds of taking AML. The employee must respond to this letter within 21 days. If she fails to do so, the employer can take appropriate disciplinary action but she will not automatically lose her right to return to work, as at present. It is not clear what kind of penalty would be appropriate in these circumstances, although no doubt this will be clarified by case law in due course. Employers should note that applying procedures more harshly than to other employees in similar circumstances may give rise to a claim of sex discrimination. It would be advisable to update disciplinary procedures to make it clear what sanctions may apply if the employee fails to give correct notice or fails to reply to the employer’s request.

Returning to work before the end of OML or AML If the employee intends to return to work before the end of her OML or AML, she must give at least 21 days notice which does not have to be in writing. The employer can delay her return until 21 days have elapsed if correct notice is not given, but cannot now postpone return to work after AML for any other reason.

Sickness at the end of OML or AML

The old rules on postponing an employee’s return to work have gone. Where an employee is unable to attend work at the end of her OML or AML due to sickness, the normal contractual arrangements for sickness absence and sick pay will now apply.

Given the changes outlined above all employers should be reviewing and updating their maternity policies now, both to ensure that they will comply with the new law and to ensure that employees are aware of their rights and obligations. This may mean operating two procedures for a time, one in respect of women whose expected week of childbirth is before 30th April 2000 and the other for women whose babies are due after that date. It is to be hoped that the changes, in particular, the simplification of the notification procedures and clarification of the contractual status of an employee on AML, will reduce the need for employers to resort to the courts. Only time will tell.