first_img Previous Article Next Article Related posts:No related photos. TheGovernment has announced plans to change the Regulations 1999 provisions. SueNickson sets out the present rights to see what it has to build onMaternity rights legislation was overhauled as part of the widespreadchanges made by the Employment Relations Act 1999, amending the EmploymentRights Act 1996 (ERA), and implementing the Maternity and Parental LeaveRegulations 1999 (the Regulations). The amendments were intended to simplifythis complex area of law and to a certain extent have been welcomed asproviding clarification on many points. On 7 December 2000 the Governmentannounced plans to change these provisions yet again. An overview of thepresent rights is set out here to see what the Government has to build upon. Maternity Leave The provisions relating to maternity leave are now found in sections 71-75of the ERA and in the Regulations. All employees are entitled to 18 weeks maternityleave, this is known as ordinary maternity leave (OML). An employee with oneyear’s service as at the 11th week before the expected week of childbirth (EWC)will also qualify for additional maternity leave (AML). This entitles her totake leave of up to 29 weeks from the date of birth. As an employee may opt tobegin her ordinary maternity leave up to 11 weeks before the EWC this providesa maximum entitlement of 40 weeks leave. There are two circumstances in whichan employee will not be able to choose when she begins her maternity leave.Early childbirth will automatically begin maternity leave as will any absencedue to a pregnancy related reason in the six-week period immediately precedingthe EWC. Terms and conditions during Maternity Leave During the ordinary maternity leave period the employee is entitled toreceive all their normal contractual benefits with the exception of pay orwages, for example, she will usually be able to retain her company car duringthe 18 weeks. The employee’s normal pay will be replaced with statutorymaternity pay. If contributions are made to the employee’s pension then theyshould be continued as at the notional rate of her normal salary. During the additional maternity leave period the regulations state that thecontract will remain in existence however the terms and conditions that applyduring this period are limited. The employee will have the benefit of theimplied obligation of trust and confidence; notice of termination provisions;redundancy payment provisions and disciplinary and grievance procedures. Shewill be bound by the implied obligation of good faith and any terms relating tonotice of termination; disclosure of confidential information; the acceptanceof gifts or other benefits or participation in any other business. Holidays and Maternity Leave As stated, the contractual benefits except pay will continue to accrueduring the ordinary maternity leave period. This will include accrual ofcontractual leave. During the additional maternity leave period there is noright to accrue contractual leave. There is, however, the need to comply withthe minimum annual leave provisions contained in the Working Time Regulations1998 which state that all employees will be entitled to at least four weeks annualleave. The employee’s contractual leave entitlement should be calculated,excluding the additional maternity leave period, then an adjustment made toensure that the annual leave still complies with this minimum entitlement. Maternity Pay The provisions relating to statutory maternity pay (SMP) are contained inthe Social Security Contributions and Benefits Act 1992 and the StatutoryMaternity Pay (General) Regulations 1986 (SMP Regs). To qualify for SMP theemployee must have 26 weeks service as at the qualifying week, ie the 15th weekbefore the EWC and average earnings in the eight weeks up to and including thisweek over the lower earnings level for National Insurance contributions. If shemeets the qualifying conditions the employee will be entitled to receive 90 percent of her normal earnings for the first six weeks of the maternity leaveperiod and then 12 weeks at a flat rate of £60.20 (reviewed annually in April).The SMP Regs provide that an employee’s normal earnings should be calculated asat the qualifying week but that back dated pay rises should be taken intoaccount also. In the case of Alabaster v (1) Woolwich plc (2) Secretary ofState for Social Security, 2000, The Times 9 April, the Employment AppealTribunal held that the SMP Regs did not go far enough to comply with therulings of the European Court of Justice on maternity pay. In effect the SMPRegs should not ignore pay rises that take place at any time between thequalifying week and the end of the maternity pay period. This decision has beenappealed but if confirmed it will mean that the SMP Regs will have to beamended. Paid time off for antenatal care The employee’s right to paid time off is contained in sections 55 to 56 ofthe ERA. There is no minimum service qualification for the employee to acquirethis right nor does it matter if the employee’s job is temporary or permanent. Antenatal care is not defined by the ERA whether it includes relaxation orparent-craft classes is a matter of some contention. In the case of Gregory vTudsbury, 1982, IRLR 267 the tribunal accepted, with supporting medicalevidence, that the relaxation classes the employee attended were an essentialpart of her antenatal care. Mrs Gregory’s employer allowed her time off toattend the appointments but refused to pay her for that time. The tribunal heldthat by allowing Mrs Gregory time off the employer had accepted that it wasreasonable and therefore should have paid her. However in Bateman v FlexibleLamps Ltd, ET Case No. 3204707, a tribunal refused to accept that antenatalcare would include parent-craft classes, describing such as merely optional.Therefore, it remains an area of some uncertainty. The right is to time offduring the employee’s working hours. An employer is not entitled to rearrangethe employee’s normal working hours in order to avoid the employee taking timeoff. An employee who is permitted to take time off under section 55 is entitledto be paid at the appropriate hourly rate for the period of absence necessaryto enable her to attend the appointment. An employee must produce a certificateof pregnancy and appointment card if requested to do so. If she fails to dothis she will not be entitled to pay for any time off allowed. Health of the pregnant worker The EU Pregnant Workers Directive makes provision for the health and safetyof pregnant workers. An employee who is pregnant, or who has recently givenbirth, or who is breastfeeding may, as an ultimate measure, have to besuspended from work on health and safety grounds if continued attendance mightdamage her, or her baby’s health. Under the Management of Health and Safety at Work Regulations 1999 employersof women of childbearing age are required to carry out a risk assessment on anemployee’s role. If the role poses a risk to either the new or expectant motheror baby’s health, or if the employee advises them that such a risk does exist(for example, on advice from their GP) the employer should take steps to reduceor remove the risk. The obligation would include temporarily adjusting theworking conditions and/or hours of work; offering suitable alternative work, orsuspending her from work for as long as is necessary to protect her safety orthat of her child. Alternative work must be suitable in relation to the employee andappropriate in the circumstances for her to do and, the terms and conditionsapplicable must not be substantially less favourable than those which apply toher performing her normal role. If suspended the employee is entitled to full pay during the period ofsuspension in accordance with section 68 of the ERA unless she has unreasonablyrefused a suitable alternative offer. Notification procedures The same notice provisions apply to both OML and AML. An employee has togive 21 days notice confirming her pregnancy, the EWC, and her intended startdate of maternity leave. The notice need not be in writing unless the employer so requests. If anemployee intends to return at the end of the OML or AML she need do nothingmore. If, however, she intends to return earlier than the end of the maternityleave period to which she is entitled she is required to give 21 days notice.In the event that she does not the employer will be able to postpone her returndate for up to 21 days. If the employee is entitled to AML the employer may request confirmationthat she will be returning at the end of the AML. The request should be sent noearlier than 21 days before the end of the OML. The letter should explain howshe can work out when her AML will end and ask for confirmation of the child’sdate of birth and whether she intends to return at the end of the AML. Itshould also warn the employee that if they fail to reply within a period of 21days she may be penalised. She will not lose her right to return but she will lose statutory protectionagainst action that may amount to a detriment and her right to claim automaticunfair dismissal. The right to return Following OML the employee is entitled to return to the job in which she wasemployed before her absence with the benefit of all her rights as if she hadnot been absent. Failure to allow this for a reason connected to her maternityleave will be automatically unfair dismissal. Following AML the employee is entitled to return to the same job, or if itis not reasonably practicable for the employer to permit her to return to thatjob, to another job which is both suitable for her and appropriate for her to doin the circumstances. Again failure to allow her to return will beautomatically unfair dismissal. Parental Leave The right of employees to take parental leave is contained in the ERA andthe regulations. The right is to take up to 13 weeks’ unpaid leave in respectof each child, for whom the employee has parental responsibility, for anypurpose connected with the care of that child. It is subject to a requirementof one year’s qualifying service. The entitlement is in addition to the rightto take maternity leave. The leave need not be taken as one continuous period,but must be taken by the child’s fifth birthday, the fifth anniversary of theadoption of the child, or, if the child is disabled, by their 18th birthday. Parental leave may be taken by both parents of any child born or adopted onor after 15 December 1999, ie when the Regulations were implemented. The leavealso extends to a person who is not a natural parent of the child, but who hasparental responsibility under the Children Act 1989 (or its equivalent inScotland). The TUC have challenged the requirement that the child must be born oradopted on or after 15 December on the basis that it does not properlyimplement the Parental Leave Directive. The matter has been referred to theEuropean Court of Justice. Workforce/collective agreement It was decided to leave a degree of flexibility regarding the administrationof the leave, to allow scope for employers to agree a method of implementationwith their workforce. Agreements should be in writing, in the form of collective or workforceagreements, incorporated into the contract of employment. It has to be reviewedwithin a five-year period. It must apply to the entire workforce or to themembers of the relevant group of workers, who perform a particular function orbelong to a particular department. It must be signed by all members of thegroup, or by elected representatives. This means that employers can agree withtheir workforce how much notice must be given when an employee wishes to takeleave, and whether leave must be taken in blocks of a particular period oftime. They may also agree on whether certain contractual benefits will remainavailable to employees during the period of leave. An agreement cannot,however, give rights that are less favourable than those given by the statute.If there is no such agreement then parental leave must be administered inaccordance with the default provisions. The default provisions The default provisions require that an employee give at least 21 days’notice of their intention to take parental leave; that it should be taken inblocks of one week, and that no more than four weeks’ leave can be taken in anyyear. An employer may postpone the parental leave for up to six months if theemployee’s absence will cause undue disruption to the business. It would benecessary to advise the employee of the postponement within seven days ofreceiving the notice to take leave giving details of the new dates. This right to postpone however does not apply when an employee gives noticeto take the leave as at the date of birth or adoption. There are more generous provisions for parents of disabled children. Theyare not required to take leave in blocks of one week, and leave can be taken upto the child’s 18th birthday rather than its fifth birthday. The terms and conditions that continue during the period of parental leaveare the same as those that apply during the AML period. Sue Nickson is partner and national head of employment law at HammondSuddard Edge Comments are closed. Maternity and parental leave: One year onOn 1 Feb 2001 in Personnel Todaylast_img read more

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