MATERNITY AND PATERNITY LEAVE
This article first appeared in Employment Law & Litigation – volume 8 issue 4 – 2003
The Maternity and Parental Leave Regulations 1999 – SI 1999/3312 (MPLR) and the Employment
Rights Act 1996 (ERA) currently provide rights to employees in respect of maternity and parental
leave.
These are:
•
the entitlement to ordinary maternity leave (OML): regulation 4 of the MPLR and section 71 of
the ERA;
•
the entitlement to additional maternity leave (AML): regulation 5 of the MPLR and section 73
of the ERA;
•
the entitlement to parental leave (PL): regulation 13 of the MPLR and section 76 of the ERA;
•
the right to return to return after maternity or parental leave: regulation 18 of the ERA and
section 77 of the ERA;
•
protection from detriment: regulation 19 of the MPLR and section 47C of the ERA;
•
unfair dismissal: regulation 20 of the MPLR and section 99 of the ERA.
The Social Security Contributions and Benefits Act 1992 (SSCBA) and the Statutory Maternity Pay
(General) Regulations 1986 (as amended) – SI 1986/1960 (SMPGR) provides for payment in relation
to maternity namely, statutory maternity pay: sections 164 and 166 of the SSCBA and regulation 2 of
the SMPGR.
The Employment Act 2002 (EA) enhances those existing rights under the MPLR, the ERA, the
SSBCA and the SMPGR and creates new rights to paternity leave and adoption leave. This article
will concentrate on maternity and paternity only.
Most of the detail of these new and amended rights is set out in the:
•
Maternity and Parental Leave (Amendment) Regulations 2002 – SI 2002/2789 (MPLAR),
which came into force on 24 November 2002 amends the existing maternity leave provisions
in the MPLR;
•
Social Security, Statutory Maternity Pay and Statutory Sick Pay (Miscellaneous Amendments)
Regulations 2002 – SI 2002/2690, which came into force for the most part on 24 November
2002, with the remainder coming into force on 6 April 2003, amends the existing statutory
maternity pay (SMP) provisions in the SMPGR;
•
Paternity and Adoption Leave Regulations 2002 – SI 2002/2788 (PALR), which came into
force on 8 December 2002 and provides new rights in relation to paternity and adoption leave;
and
MATERNITY LEAVE
All references to regulations in relation to maternity leave are the MPLR as amended, unless
otherwise stated.
The new maternity leave provisions apply to women whose expected week of childbirth (EWC) is on
or after 6 April 2003, even if their babies are born earlier than expected. The changes do not apply to
women whose EWC is before 6 April 2003, even if their babies are born after that date. However,
these new rights may apply earlier than 6 April 2003 if the EWC is on or after this date but a baby is
born premature.
The EWC is the week beginning with the Sunday, in which the baby is due: regulation 2(1).
Entitlement to ordinary maternity leave
A female employee is entitled to OML regardless of her length of service, hours of work, whether her
employment is temporary or permanent or the number of staff employed by her employer.
Duration and commencement of leave
An employee’s OML will increase from 18 weeks to 26 weeks: regulation 7(1).
OML will start on the earliest of:
•
the date the employee has given notice to her employer in accordance with regulation 4 (and
no earlier than the 11
thweek before the EWC): regulation 6(1)(a);
•
the day following the first day after the beginning of the fourth week (previously sixth week)
before the EWC, if an employee is absent for a pregnancy-related reason, which will
automatically trigger her OML: regulation 6(1)(b);
•
the day after the day of childbirth, if the employee’s OML has not already commenced:
regulation 6(2).
Notice by employee
The MPLAR simplify notification arrangements.
Under the revised regulation 4(1) of the MPLR an employee is entitled to OML provided no later than
the end of the 15
thweek before her EWC (previously 21 days) and if it is not reasonably practicable to
do so, as soon as it is reasonably practicable, she notifies her employer of:
•
her pregnancy: regulation 4(1)(a)(i);
•
the EWC: regulation 4(1)(a)(ii). The employer can request that the employee provide a
certificate from a registered medical practitioner (eg a MAT B1) or a registered midwife stating
the EWC: regulation 4(1)(b); and
•
the date she intends to start her OML. This must be in writing if the employer so requests:
regulation 4(2)(a).
If an employee fails to notify her employer before the EWC and if it was not reasonably practicable for
her to do so, then she will not be entitled to OML. Furthermore, if an employee fails to provide any or
all of the requirements of the notification requirements in accordance with regulation 4, she will also
lose her right to OML.
Employer’s response
On receiving notice under regulation 4, an employer must respond within 28 days, in writing, stating
the expected date of return from the maternity leave period: regulations 7(6) and (7).
The expected date of return depends on whether an employee is entitled to AML.
If the employer fails to comply with regulations 7(6) and (7), and the employee subsequently returns
to work too late, any detriment suffered would be unlawful: regulation 19 and any dismissal based on
this reason would be it would be automatically unfair: regulation 20.
The employee would also be able to return to work early without having to give the usual notice.
The government has produced a draft model letter for employers to acknowledge notification of
maternity leave, which is available on the DTI’s website at www.dti.gov.uk.
Entitlement to additional maternity leave
An employee must have 26 weeks’ continuous service by the start of the 14
thweek before the EWC
(previously an employee had to have one year’s service by the 11
thweek before the EWC): regulation
7(4).
Duration and commencement of leave
AML lasts for 26 weeks from the day after the last day of OML: regulation 6(3).
Therefore, an employee will be entitled to 52 weeks’ maternity leave (previously the length of AML
ended after 29
thweek after the actual week of birth, which increased the maternity leave period by
anything from 11 to 22 weeks).
As before, AML is unpaid.
Early return from maternity leave
An employee returning to work after either OML or AML does not have to give notice of her return and
can simply return to work on the first working day after the relevant leave has ended.
If an employee wishes to return to work before the end of OML or AML has ended, then she must give
her employer at least 28 days’ notice (previously 21 days), which does not have to be in writing, of the
date she intends to return: regulation 11(1).
However, if an employee does not provide her employer with the requisite 28 day’s notice, the
employer can postpone her return to the end of her full leave period: regulation 11(2), but not beyond
the relevant maternity leave period: regulation 11(3).
If an employee returns to work before the expiry of her relevant maternity leave period without
providing the requisite notice, an employer is under no contractual obligation to pay remuneration until
the end of that relevant maternity leave period: regulation 11(4).
Terms and conditions during maternity leave
Under section 71(4) of the ERA and regulation 9, an employee on OML is:
•
entitled, during the period of leave, to the benefit of all the terms and conditions of
employment which would have applied if she had not been absent; and
Section 71(5) of the ERA defines terms and conditions as including ‘matters connected with an
employee’s employment whether or not they arise under her contract of employment, but does not
include terms and conditions about remuneration’. Remuneration in this instance is defined as wages
or salary: regulation 9(3).
Therefore, an employee’s contract of employment continues during OML and an employee must be
treated as if she were not absent, in relation to terms and benefits she is entitled to receive and
obligations she owes her employer. The only permissible exception is entitlement to remuneration.
In GUS Home Shopping Ltd v Green [2001] IRLR 75, EAT, two women were disqualified from
receiving payment under a loyalty bonus scheme by their employer because they were absent from
work during the relevant period due to pregnancy-related illness and maternity leave. The EAT upheld
the employment tribunal’s finding that this was less favourable treatment due to pregnancy and
therefore, unlawful sex discrimination.
Consequently, although wages is defined in section 27(1)(a) of the ERA as including bonuses and an
employee is not entitled to receive wages during OML: regulation 9(3), unless stipulated by her
contract of employment, there are exceptions to rule.
A period of compulsory maternity leave, ie the two-week period following childbirth when an employee
is prohibited from working: regulation 8, is treated as being a period of OML and the same provisions
relating to terms and conditions apply: section 72(3)(b) of the ERA.
With regard to terms and conditions of employment during AML, under regulation 17, an employee is:
•
entitled to an employer’s implied obligation of trust and confidence, receive notice of
termination of employment, compensation in the event of redundancy and disciplinary and
grievance procedures; and
•
bound by her implied obligation of good faith, provide notice of termination of employment,
disclosure of confidential information, acceptance of gifts or other benefits and participation in
any other business.
Rights on return from maternity leave
After OML, an employee (as before) is entitled to return to the job in which she was employed before
her absence: regulation 18A.
An employee’s job is defined as ‘the nature of 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’: regulation
2(1).
On returning, an employee is entitled to enjoy the same seniority, pension rights, similar rights and
terms and conditions not less favourable that would have applied had she not been absent: regulation
18A.
If the employee takes a period of up to four weeks’ parental leave or ordinary adoption leave at the
end of OML, she can return to the same job: regulation 18(1).
Regulations 10, 18, 19 and 20 are complex and with little to no case law are beyond the scope of this
article.
During OML and AML, an employee’s continuity of employment for the purposes of statutory
employment rights will continue: regulation 18.
Statutory maternity pay
The period of statutory maternity pay (SMP) is extended from 18 to 26 weeks, to run concurrently with
the OML period: regulation 2 of the SMPGR.
SMP is paid at a higher rate for the first six weeks of OML at 90% of average weekly earnings and at
a lower rate for the remaining 20 weeks (previously 12 weeks) as prescribed by regulations, which
from 6 April 2003 will be £100 or 90% of an employee’s average weekly earnings, whichever is the
lower (previously £75 flat rate): section 166 of the SSBCA.
Entitlement to SMP is the same as for OML and conditional on the employee having:
•
26 weeks’ continuous service by the start of the 14
thweek before the EWC: section 164(1)(a)
of the SSBCA;
•
that her normal weekly earnings for the period of 8 weeks ending with the week immediately
preceding the 14th week before the EWC are not less than the “lower earnings limit” for
national insurance (£77 a week to April 2004): section 164(1)(b) of the SSBCA; and
•
that she has become pregnant and has reached, or been confined before reaching, the
commencement of the 11th week before the EWC: section 164(1)(c) of the SSBCA.
Most employers will be able to recover 92% of the amount of SMP paid: section 167(1)(a) of the
SSBCA. However, small business can recover 100% of SMP paid and an additional 5%
administration charge, as they are seen as not having the overheads to easily administer these
payments.
Regulations 2 of the Statutory Maternity Pay (Compensation of Employers) and Miscellaneous
Amendment Regulations 1994 – SI 1994/1882, defines “small employer” as an employer whose
national insurance contributions payments for the qualifying tax year do not exceed a particular
amount set by regulations.
Employees who do not qualify for SMP, will often qualify for maternity allowance (MA), which is
payable directly from the benefits agency, as opposed to an employer. In order to qualify for MA she
must have been employed in at least 26 weeks out of the 66 weeks before the EWC and must have
had gross earnings of at least £30 a week averaged over a 13-week period. MA will be the same as
for SMP ie £100 a week for 26 weeks (or 90% of earnings if these are less than £100 a week):
regulation 3 of the Social Security (Maternity Allowance) Regulations 1987.
PATERNITY LEAVE
All references to regulations in relation to paternity leave are the PALR, unless otherwise stated.
The EA inserts sections 80A-E into the ERA, which creates new rights to paternity leave.
From 6 April 2003 the new right is to one or two consecutive weeks’ paid paternity leave, odd days
may not be taken, nor two separate weeks: regulation 5(1).
An employee’s period of leave will begin on:
•
the date on which the child is born: regulation 5(3)(a);
•
employee may specify in a notice under regulation 6: regulation 5(3)(b); or
•
a predetermined date, specified in a notice under that regulation, which is later than the first
day of the expected week of the child’s birth: regulation 5(3)(c).
Entitlement to paternity leave
An employee’s entitlement to paternity leave is dependant upon satisfying the conditions in regulation
4:
•
have 26 weeks’ continuous service by the start of the 14
thweek before the EWC: regulation
4(2)(a);
•
must be the biological father of the child: regulation 4(2)(b)(i) or married to or the partner of
the child’s mother, but not the child’s father: regulation 4(2)(b)(ii);
•
must have or expect to have, if he is the child’s father, responsibility for the upbringing of the
child: regulation 4(2)(c)(i) or if he is the mother’s husband or partner but not the child’s father,
the main responsibility (apart from any responsibility of the mother) for the upbringing of the
child: regulation 4(2)(c)(ii).
An employee shall be treated as having satisfied the condition in regulation (4)(2)(a) on the date of
the child’s birth even if s/he he has not then been continuously employed for a period of not less than
26 weeks, where:
•
the date on which the child is born is earlier than the 14th week before the week in which its
birth is expected: regulation 4(3)(a); and
•
the employee would have been continuously employed for such a period if his employment
had continued until that 14th week: regulation 4(3)(b).
‘Partner’ is defined as a person, whether of the same or a different sex, who lives with the mother and
the child in an “enduring family relationship” (which is not defined) but is not a relative of the mother:
regulation 2.
Therefore, paternity leave will be available to women as well as men if they meet this definition. There
is scope for more than one person to take paternity leave in respect of the same child.
Notice by employee
The employee must inform the employer of his or her intention to take paternity leave in or before the
15
thweek before the EWC and if it is not reasonably practicable to do so, as soon as it is reasonably
practicable: regulation 6(2).
The notice must specify in writing:
•
the EWC: regulation 6(1)(a);
•
the length of leave that the employee wants to take, ie one or two consecutive weeks:
regulation 6(1)(b);
•
the date from which leave is to start: regulation 6(1)(c); and
The government has produced a draft model letter for employees to declare that they satisfy the
requirements for paternity leave in accordance with regulations 4(1), (2)(b) and (2)(c), which is
available on the DTI’s website at www.dti.gov.uk.
Employees wishing to change the date in which their paternity leave is to commence must give 28
days’ notice in writing of variation (unless this is not reasonably practicable): regulation 6(4) and
providing they provide a different predetermined date: regulation 6(5).
Unlike OML, employees must give their employer further notice in writing, as soon as is reasonably
practicable after the child’s birth, of the date on which the child was born: regulation 6(7).
Terms and conditions during paternity leave
Under section 80(C) of the ERA and regulation 12, an employee on OML is:
•
entitled, during the period of leave, to the benefit of all the terms and conditions of
employment which would have applied if she had not been absent; and
•
bound, during that period, by any obligations arising under those terms and conditions,
subject only to the exception in section 80(C)(1)(b) of the ERA.
Section 80(C)(5) of the ERA defines terms and conditions as including ‘matters connected with an
employee’s employment whether or not they arise under her contract of employment, but does not
include terms and conditions about remuneration’. Remuneration in this instance is defined as wages
or salary: regulation 12(3).
Rights on return from paternity leave
Employees are entitled to return to the same job upon completion of the leave. During the leave,
normal terms and conditions of employment continue other than those relating to remuneration, ie the
same as OML: regulation 13(1).
On returning, an employee is entitled to enjoy the same seniority, pension rights, similar rights and
terms and conditions not less favourable that would have applied had she not been absent: regulation
14(1).
An employee who returns to work after a period of paternity leave greater than one week or two
consecutive weeks is entitled to return from leave to the job in which he was employed before his
absence, unless it is not reasonably practicable for him to do so. In such a case, an employee has
the right to another job, which is ‘both suitable for him and appropriate for him to do in the
circumstances’: regulation 13(2). Failing which, the employee could claim he has suffered a
detriment: regulation 28 or that he has been unfairly dismissed: regulation 29.
The government has not taken the opportunity to clarify the definition of remuneration – ‘sums
payable by way of wages or salary’ – and as with OML the uncertainty regarding treatment of
bonuses and other similar payments remains.
Statutory paternity pay
The period of statutory paternity pay (SPP) is a maximum of two weeks (previously unpaid) to run
concurrently with the paternity leave period: part 12ZA of the SSBCA.
Entitlement to SPP is conditional on the employee satisfying regulations 4(2)(b) and (c) above:
regulation 4 of the SPPSAPR, and that his normal weekly earnings are not less than the “lower
earnings limit” for national insurance above: part 12ZA of the SSBCA.
The rate of SPP is the same as the lower rate of SMP, ie £100 per week from 6 April 2003, or 90% of
the employee’s average weekly earnings if lower: regulations 39 and 40 of the SPPSAPR.
Unlike SMP, there is no equivalent to MA and therefore, all that low income families can do is to apply
for tax credits.
Entitlement to SPP does not affect any right of an employee to contractual remuneration. Contractual
remuneration paid during the SPP period goes toward discharging the employer’s liability to pay SPP
and vice versa.
If an employee has a contractual right to paternity leave as well as the statutory right, he may (as with
maternity rights) take advantage of whichever is the more favourable.
Employers will be able to recover 92% of the amount of SPP paid, in the same way as they can claim
back SMP: part 12ZA of the SSBCA.
Marc Jones, Partner
For further information, please contact:
Marc Jones
Partner, Employment Department
TURBERVILLES
direct dial 01895 201719 direct fax 01895 201702
email marc.jones@turbervilles.co.uk
