Maternity and parental leave

Ordinary maternity leave

OML means leave under the new s.71 of the ERA. That provision re-enacts the general right (in the original s.71 of the ERA) of all employees, regardless of their length of service, to a minimum period of maternity leave, which is extended from 14 weeks to 18 weeks in line with the period for which statutory maternity pay ("SMP") is payable. The new s.71 also replaces provisions in the old ss.72-76 of the ERA with powers that have enabled similar provisions to be made in the Regulations. They prescribe the conditions that an employee must satisfy to qualify for OML and the method of calculating it.

Entitlement to OML

An employee is entitled to OML if, at least 21 days before she intends it to start (or, if that is not reasonably practicable, as soon as is reasonably practicable), she notifies her employer:

The employee's EWC is the week, beginning with midnight between Saturday and Sunday on or after 30 April 2000, in which it is expected that childbirth⁴ will occur (regs. 2(1) and 3(1)).

The employee does not have to notify her employer of her intended leave date if her baby is premature or stillborn after 24 weeks of pregnancy. But whether or not she has done so, she will forfeit her right to OML unless she notifies her employer as soon as is reasonably practicable after the birth that she has given birth (reg. 4(4)). The employee also does not have to notify her employer of her intended start date if, after the beginning of the sixth week before her EWC, she is absent from work wholly or partly because of pregnancy. But, similarly, she will not be entitled to OML unless she notifies her employer as soon as is reasonably practicable that she is absent for that reason (reg. 4(3)). Furthermore, each of those notifications must be in writing if the employer so requests (reg. 4(5)).

Length of OML

An employee's OML starts with the earliest of (a) the date she has notified to her employer that she intends it to start, (b) the first day after the beginning of the sixth week before her EWC on which she is absent from work wholly or partly because of pregnancy (reg. 6(1)) and, if sooner, (c) the day she gives birth (to a premature or stillborn baby after 24 weeks of pregnancy) (reg. 6(2)), and continues:

With the increase in maternity leave entitlement from 14 weeks to 18 weeks, it is more difficult to envisage a situation occurring where a woman who started her OML 11 weeks before her baby was due would run out of leave if the baby was born late. However, if this did occur, her OML would last until the end of her CML.

If the employee is dismissed after the start of her OML but before that period would otherwise have ended, the period ends at the time of the dismissal (reg. 7(5)).

Rights during OML

An employee who takes OML:

The Secretary of State may make regulations specifying what is, or is not, to be treated as "remuneration" for those purposes (s.71(6)), and reg. 9 of the Regulations provides that "only sums payable to an employee by way of wages or salary" are to be so treated.

In other words, during her OML, the employee is not entitled to the monetary element of her salary or wages that is normally replaced by SMP or maternity allowance⁶, unless her contract of employment otherwise provides. But she will continue to be entitled to benefits in kind, such as private medical or permanent health insurance, whether or not these are contractual. She will also continue to accrue (contractual and statutory minimum) paid holiday entitlement, and other benefits that depend on length of service, during her OML.

If, during the employee's absence on OML, any change, favourable or otherwise, to her terms and conditions upon her return to work is proposed, her employer should, as a matter of principle, consult her about it as if she were at work; and she should have the opportunity to comment on it and be able to object if necessary⁷.

Right to return after OML

An employee who takes OML is entitled to return from leave to the job in which she was employed before her absence (s.71(4)(c)) with her seniority, pension and similar rights as they would have been, subject to para. 5 of Schedule 5 to the Social Security Act 1989 (which provides for pension rights to continue during any paid maternity leave on the basis of the employee's normal pay) and on terms and conditions not less favourable than those which would have applied, had she not been absent (s.71(7)).

The Government has not implemented the House of Commons Education and Employment Committee's recommendation that women should be guaranteed the right to return to work initially on a part-time basis, unless their employer could show that this would harm its business.

An employee returning to work after OML does not need to give notice of her return unless she intends to return early, in which case she must give her employer at least 21 days' notice. If she does not do so, and attempts to return early, her employer may postpone her return so as to secure that it has such notice, but not beyond the end of her OML. If the employer also notifies the employee that she is not to return before that date, it will be under no contractual obligation to pay her until then if she returns early regardless of that notification (reg. 11). This provision is to avoid the situation where the employer, having hired a temporary replacement, is left with insufficient time to give the replacement proper notice of termination, and so has to pay both him or her and the returning employee.

Compulsory maternity leave

The new s.72 of the ERA and reg. 8 of the Regulations purport to implement article 8.2 of the Pregnant Workers Directive (No.92/85/EEC), replacing the Maternity (Compulsory Leave) Regulations 1994 which originally implemented that provision. The new statutory provisions require an employer to prohibit an employee who is entitled to OML from working during the two weeks from the day on which childbirth occurs. An employer that contravenes this requirement will be guilty of a criminal offence and liable, on conviction by a magistrates' court, to a fine not exceeding level 2 on the standard scale (currently £500). The offence is not one of strict liability: there must be an intent to break the law⁸.

The Minister for Science, Department of Trade and Industry (Lord Sainsbury of Turville) doubted whether many women are keen to return to work within two weeks of having a baby. But, he said, "if the onus is on the employer to ensure that the employee does not return to work within this period, the employee cannot be pressurised to return to work immediately after childbirth and cannot be forced to bear any additional strain of having to assert her rights at such a busy and stressful time."

Additional maternity leave

AML means leave under the new s.73 of the ERA, which replaces the old ss.79-85 of the ERA. The new provisions differ principally in that the new right to AML is a right to leave for a period of 29 weeks from the beginning of the week of childbirth, rather than a right to return within such a period, and it is available to women who have been continuously employed for one year rather than, as previously, for two years. The Government estimates that each year about 23,000 women stand to benefit directly from the reduction in the qualifying period⁹.

Entitlement to AML

An employee is entitled to AML if she is entitled to OML (see above ) and has been continuously employed for at least a year by the beginning of the 11th week before her EWC (reg. 5).

The employee does not also have to notify her employer that she intends to take AML when she gives it the notifications required for entitlement to OML. The presumption will be that she will take her AML unless she notifies her intention to return early (see below ).

Length of AML

An employee's AML begins on the day after the last day of her OML (reg. 6(3)), and continues until the end of the period of 29 weeks beginning with the week she gives birth (reg. 7(4)). If, however, the employee is dismissed after the commencement of her AML but before that period would otherwise have ended, the period ends at the time of the dismissal (reg. 7(5)).

Rights during AML

The new s.73(4) and (5) of the ERA provides that an employee who takes AML (a) is entitled, "for such purposes and to such extent as may be prescribed", to the benefit of the terms and conditions of employment not about remuneration that would have applied if she had not been absent, and (b) is bound, again "for such purposes and to such extent as may be prescribed", by obligations arising under those terms and conditions which are not inconsistent with her right to be absent from work on AML.

The Secretary of State may make regulations specifying what is, or is not, to be treated as "remuneration" for those purposes, but he has not done so. The Regulations simply provide that an employee who takes AML is entitled, during the period of leave, to the benefit of her employer's implied obligation to her of trust and confidence and any terms and conditions of her employment (including matters connected with her employment whether or not they arise under her contract of employment) relating to:

In turn, she is bound, during the period of leave, by her implied obligation to her employer of good faith and any terms and conditions of her employment relating to:

It follows that, during her AML, the employee is not entitled to be paid, and her employer is not obliged to continue her benefits, unless her contract of employment provides otherwise. In the absence of an express term in her contract of employment restricting her disclosure of confidential information during her employment, she will be bound only by her implied duty not to disclose her employer's trade secrets after her employment has ended.

Right to return after AML

An employee who takes AML is entitled to return from leave:

It follows that, when she returns to work, the employee will receive the full benefit of any pay increase that was awarded during her OML or her AML, while her pension rights will have been suspended during her AML. Neither she nor her employer will have had to pay pension contributions during her AML, and that period will not count towards pensionable service. The pension rights that the employee had built up before taking AML will remain intact and, if she was paid during her AML, her pension rights will have continued to accrue during that period on the basis of the pay that she would have received had she been working normally.

An employee who intends to return to work early must give her employer at least 21 days' notice. If she does not do so, and attempts to return early, her employer may postpone her return so as to secure that it has such notice, but not beyond the end of her AML. If the employer also notifies the employee that she is not to return before that date, it will be under no contractual obligation to pay her until then if she returns early regardless of that notification (reg. 11).

The employer may not postpone the employee's return to work after AML for any other reason. Nor may the employee postpone her return to work on grounds of illness after AML. If she is ill, then, according to the consultation paper¹¹ issued by the Department of Trade and Industry ("the DTI") in August 1999, the normal sick-leave procedures at her workplace will apply.

However, the employer may still ask the employee, no earlier than 21 days before her OML ends, to notify it of the date she gave birth and whether or not she intends to return to work at the end of her AML. If the employer does so, then the employee must give the requested notification within 21 days of receiving the request (reg. 12(1)), provided that the request was made in writing and accompanied by a written statement explaining how the employee could determine the date on which her AML would end, and warning her that, if she failed to respond to the request within 21 days of receiving it, she would forfeit not her right to return but her protection from victimisation and dismissal (see below ) because she took AML (reg. 12(2) and (3)).

Redundancy during maternity leave

If, during an employee's OML or AML, it is not practicable by reason of redundancy for her employer to continue to employ her under her existing contract of employment, she is entitled to be offered alternative employment with her employer, its successor or an associated employer where there is a suitable available vacancy. That offer must be made before the end of her employment under her existing contract, and the new contract must take effect immediately on the ending of her employment under the previous contract (reg. 10(1) and (2)).

The new contract must also be such that (a) the kind of work to be done under it is both suitable in relation to the employee and appropriate for her to do in the circumstances, and (b) 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 (reg. 10(3)).

PARENTAL LEAVE

Chapter II of Part I of Schedule 4 to the 1999 Act sets out the basis for a new statutory parental leave scheme to be inserted into the ERA as Chapter II of the new Part VIII, following on from the maternity leave provisions in Chapter I. The new ss.76-80 of the ERA, together with relevant provisions of the Regulations, purport to implement in Great Britain, flexibly and "with a light touch", the bulk of the framework agreement on parental leave annexed to the Parental Leave Directive (No.96/34/EC) ("the Directive"), which was extended to the United Kingdom by Council Directive 97/75/EC.

The new s.78(7) of the ERA provides for a collective or workforce agreement to apply in relation to an employee in addition to the statutory scheme (or in place of that to the extent that it is more generous) if the employee's contract of employment incorporates, or operates by reference to, all or part of that agreement. If it does not, the Regulations provide for a fallback scheme to apply in relation to the employee (reg. 16 and Schedule 2). The Government's intention was to encourage employers and employees to agree arrangements for how and when parental leave should be taken that reflect their own particular needs, rather than rely on the fallback scheme, which will automatically take effect if they cannot agree on, or do not wish to make, their own arrangements.

A "collective agreement" is any agreement or arrangement made by or on behalf of one or more independent trade unions and one or more employers or employers' associations and relating to one or more of the matters specified in s.178(2) of the Trade Union and Labour Relations (Consolidation) Act 1992. Thus, it may cover other matters as well as parental leave.

A "workforce agreement" is an agreement between an employer and its employees or their representatives which: is in writing; has effect for a specified period not exceeding five years; applies to either (i) all of the employees employed by the employer (excluding any employee whose terms and conditions of employment are provided for, wholly or in part, in a collective agreement) or (ii) a group of them who undertake a particular function, work at a particular workplace or belong to a particular department or unit within the employer's business; is signed by either (i) representatives of the employees, or of the particular group, who have been "duly elected"¹² to represent them, or (ii), if the employer employs 20 or fewer employees, their appropriate representatives or the majority of its employees; and before the agreement was made available for signature, the employer provided all the employees to whom it was intended to apply, on the date on which it came into effect, with copies of the text of the agreement, and such guidance as those employees might reasonably require to understand it in full (reg. 2(1) and paras. 1 and 2 of Schedule 1).

An agreed scheme should build on, and may improve upon but may not derogate from, the key elements of parental leave that will apply in every case (whether or not they are explicitly included in the employee's contract of employment). It could, for example, allow employees to take parental leave in the form of reduced-hours working, or to take more than 13 weeks', and/or paid, parental leave to care for children who are older than five and/or who were born or adopted before 15 December 1999. But it must be given legal force by being written into each employee's contract of employment. Existing employees must agree to the change, unless their contract provides for the terms of collective or workforce agreements to become part of employment contracts automatically. If this is not done, or if no agreement is in place, the fallback scheme will automatically apply to the employee concerned.

Lord Sainsbury told peers: "We want to ensure that there is sufficient scope for agreements to replace or supplement the statutory provisions, except where these are set in stone as minimum requirements. It will not be possible for collective and workforce agreements to undermine certain minimum requirements, for example, the entitlement to at least three months' leave to care for a child, and the precondition of a year's service in order to qualify for the entitlement, although we will always applaud more generous provision where it can be afforded."

He added: "However, there are more discretionary matters, such as the notice requirements or the arrangements for taking leave in short or long periods, where workforces and their employers could agree something different from the fallback scheme ... "¹³ If they agree something that is less favourable than that scheme, the employee will still be able to take advantage of the relevant provision of that scheme in taking parental leave (reg. 21).

The Directive allows "management and labour" (and/or member states) to "decide whether parental leave is granted on a full-time or part-time basis, in a piecemeal way or in the form of a time-credit system"; to "establish notice periods to be given by the worker to the employer when exercising the right to parental leave, specifying the beginning and the end of the period of leave"; and to "define the circumstances in which an employer, following consultation in accordance with national law, collective agreements and practices, may postpone parental leave for justifiable reasons related to the operation of the undertaking".

Entitlement to leave

An employee who:

is entitled, in accordance with the Regulations, to be absent from work on parental leave for the purpose of caring for that child (reg. 13(1) and (3)).

Women who qualify for parental leave can take it immediately after taking maternity leave.

The new s.76(5) of the ERA allows regulations to specify what counts, or does not count, as "caring for a child", but the Regulations do not do so. However, the DTI leaflet Parental leave: a short guide for employers and employees¹⁴ defines "parental leave" as leave taken to look after a child or to make arrangements for the child's welfare. Parents can use it to spend more time with children and strike a better balance between their work and family commitments. The reasons for the leave need not be connected with the child's health. Settling the child in at a new playgroup, for example, could be covered¹⁵.

An employee has "responsibility for a child" if:

The Children Act 1989 provides that, where a child's father and mother were married to each other at the time of the child's birth, they shall each have parental responsibility for the child (s.2(1)). Where they were not married to each other at that time, the mother shall have parental responsibility for the child but the father shall not, unless he acquires it as a result of (a) a court, on his application, ordering that he shall have it, or (b) he and the child's mother formally agreeing to provide for him to have it (ss.2(2) and 4). A person appointed as the child's guardian by a court order or by the child's mother or father, in the event of their death, also has parental responsibility for the child (s.5(6)).

The Adoption Act 1976, as amended by the Children Act 1989, provides for an adoption order to give parental responsibility for a child to someone who is not his or her mother or father. Thus an adoptive parent of a child can have parental responsibility for him or her. But a step-parent or foster parent of his or hers cannot, unless they are his or her appointed guardian.

Extent of entitlement

An employee is entitled to 13 weeks' parental leave¹⁶ in respect of any individual child (reg. 14(1)). In the case of multiple births (twins, triplets, etc), each parent will get 13 weeks' leave for each child. In the case of employees who work part time, the leave will be in proportion to the time worked. So someone who works two days a week will have the right to 26 days' leave¹⁷.

Where an employee changes employers, he or she will need to re-qualify and has no right to take more than 13 weeks for each child in total with successive employers. But he or she can carry over untaken parental leave from one employer to the next. His or her new employer will be free to make enquiries of the previous one, or to seek a declaration from the employee, about how much parental leave he or she has already taken. However, there is no requirement for the previous employer to pass on such information, and the employee is not under any duty to make such a declaration.

The Directive says that, in principle, parental leave should not be transferable from one parent to the other and, although the Regulations do not allow this, the new s.78(5) of the ERA provides for subsequent regulations to do so in specified circumstances. But these must be "exceptional"¹⁸.

An employee to whom the fallback scheme applies may take parental leave in blocks of one week, or multiples of one week (or in blocks of one day, or multiples of one day, if the child in respect of whom leave is to be taken is disabled) up to a maximum of four weeks' leave in respect of any individual child during a particular year¹⁹.

A week's leave is a period of absence from work equal to either the period for which the employee is normally required to work in the course of a week (reg. 14(2)) or, where that period varies or the employee is normally required to work in some weeks but not in others, the total of the periods for which he or she is normally required to work in a year divided by 52 (reg. 14(3)).

Where an employee takes leave in periods shorter than the period which constitutes, for him or her, a week's leave under whichever of reg. 14(2) and (3) above is applicable in his or her case, he or she completes a week's leave when the aggregate of the periods of leave he or she has taken equals the period constituting a week's leave for him or her under the applicable paragraph (reg. 14(4)).

Taking of leave

An employee may take parental leave when the child is born or placed with him or her for adoption, or as soon as he or she has completed a year's continuous service, whichever is the later, up until:

Proof of entitlement

An employee to whom the fallback scheme applies may not take parental leave unless he or she has complied with any request made by his or her employer to produce for the employer's inspection such evidence as may reasonably be required of: (a) the employee's responsibility or expected responsibility for the child in respect of whom he or she proposes to take parental leave; (b) the child's date of birth or, in the case of a child who was placed with the employee for adoption, the date on which the placement began; and (c) where the employee's entitlement depends upon whether or not the child is entitled to a disability living allowance, the child's entitlement to that allowance (paras. 1(a) and 2 of Schedule 2).

It would not be reasonable to ask for proof of a child's age each time leave is requested in respect of that child or to ask to see documents other than the normal ones, such as a birth certificate, which an employee can get hold of easily. If an employee tries to claim leave dishonestly, the employer can deal with him or her according to normal disciplinary procedures.²¹

Notice requirements

An employee to whom the fallback scheme applies may not take parental leave unless he or she has given his or her employer notice of the period of leave he or she proposes to take. The notice required must (a) specify the dates on which the period of leave is to begin and end, and (b) be given to the employer at least 21 days before the date on which that period is to begin (paras. 1(b) and 3 of Schedule 2), unless:

Postponement of leave

The fallback scheme provides that an employer may postpone a period of parental leave in the following circumstances:

The employer and the employee should try to agree a suitable time, but if they cannot, the employer becomes responsible for guaranteeing that the employee can take the leave at a time, no more than six months from the day on which the employee wanted to start parental leave, which best fits the needs of the business and the employee's needs. If this means that the leave is postponed beyond the five-year limit, the employee still has the right to take it.21

An employee may complain to an employment tribunal under the new s.80 of the ERA that his or her employer:

Such a complaint must be presented within three months of the date (or last date) of the matters complained of, or, if that was not reasonably practicable, within such further period as the tribunal considers reasonable.

Where the tribunal finds the complaint well founded, it must make a declaration to that effect and may award such (uncapped) amount of compensation as it considers "just and equitable in all the circumstances having regard to - (a) the employer's behaviour, and (b) any loss sustained by the employee which is attributable to the matters complained of."

The Directive gives the following examples of circumstances in which an employer may, following consultation, postpone parental leave: "... where work is of a seasonal nature, where a replacement cannot be found within the notice period, where a significant proportion of the workforce applies for parental leave at the same time, where a specific function is of strategic importance."

According to the explanatory notes to the 1999 Act²⁴, factors that might count towards a decision by the employer to postpone the taking of leave by an employee could include a peak business period or a peak absence period, the level of the employee's skill and responsibility, or the difficulty in finding a short-term replacement or covering the absence by other means. The employee's role may be such that his or her absence at a particular time would unduly disrupt the operation of the employer's business.

The DTI's consultation document²⁵ suggested that an employer could postpone a period of parental leave either where the needs of its business or the quality of a service, such as education, make this necessary, taking into account the size of the firm or organisation, or when the leave would "harm" the employer's business or organisation; for example, if the firm was expecting a large order and all employees were needed to fill it or, in the education sector, to ensure the continuance of education.

Lord Sainsbury shared the concern that employers should be able to postpone leave "if necessary". He added: "It is clearly right that, faced with perhaps several requests for leave at a busy time, the employer should be able to say, 'I'm afraid not now, but later'."²⁶ The then Minister of State, Department of Trade and Industry (Ian McCartney) said that the Government would ensure that employers who have a "good business reason" for postponing leave can do so when their interests outweigh those of the employee. Mr McCartney added: "A parent who wants to be with a child recovering from an operation cannot postpone that need, but one who simply wants some time with a child might be asked not to take it during a rush period in the workplace."²⁷

Record-keeping

The new s.79(1)(b) of the ERA allows regulations to require employers or employees to keep records. The Regulations do not require employers to keep any records of parental leave taken, although many will probably want to do so for their own purposes, and nor do they require employees to keep records. Parental leave schemes are meant to be self-regulating.

Rights during leave

The new s.77(1) of the ERA requires regulations made under s.76 to provide that an employee who is absent on parental leave (a) is entitled, "for such purposes and to such extent as may be prescribed", to the benefit of the terms and conditions of employment that would have applied if he or she had not been so absent, and (b) is bound, again "for such purposes and to such extent as may be prescribed", by any obligations arising under those terms and conditions that are not inconsistent with his or her right to be absent from work on parental leave. The Regulations provide that the terms and conditions of employment that apply during parental leave are the same as those that apply during AML (see above ).

Given that a period of parental leave is that much shorter than AML, it is perhaps less likely that employers will choose to discontinue employees' benefits for that period.

Right to return after leave

The Directive requires that, at the end of parental leave, workers should have "the right to return to the same job or, if that is not possible, to an equivalent or similar job consistent with their employment contract or employment relationship".

The Regulations provide that an employee who takes more than four weeks' parental leave has the same entitlement to return from leave as an employee returning from AML (see above ).

An employee who takes up to four weeks' parental leave, other than immediately after taking AML, is entitled to return from leave to the job in which he or she was employed before his or her absence (reg. 18(1)), while an employee who takes up to four weeks' parental leave immediately after taking AML is entitled to return to that job unless:

Otherwise, she is entitled to return to another job which is both suitable for her and appropriate for her to do in the circumstances (reg. 18(3)).

The right to return is, in each case, a right to return:

It follows that, when he or she returns to work, the employee will receive the full benefit of any pay increase that was awarded during his or her parental leave, while his or her pension rights will have been suspended during that period. Neither the employee nor his or her employer will have had to pay pension contributions during his or her parental leave, and that period will not count towards pensionable service. If, however, the employee was paid during his or her parental leave, his or her pension rights will have continued to accrue during that period on the basis of the pay that he or she actually received.

Contractual rights

An employee who is entitled to OML, AML or parental leave, and also to a corresponding right which arises under her or his contract of employment or otherwise, may not exercise those rights separately but may, in taking the leave for which they provide, take advantage of whichever right is, in any particular respect, the more favourable; and the provisions of the ERA and of the Regulations relating to the statutory right apply, subject to any modifications necessary to give effect to any more favourable contractual terms, to the exercise of that composite right as they apply to the exercise of the statutory right (reg. 21).

PROTECTION FROM VICTIMISATION

An employee is entitled under a new s.47C of the ERA and reg. 19 of the Regulations not to be subjected to any detriment short of dismissal by any act, or any deliberate failure to act, by his or her employer done because:

The employer's act or failure to act must take place on or after 15 December 1999 (reg. 3(2)), or during the employee's OML or AML if done because she has given birth to a child (reg. 19(5))²⁹.

The employee may complain to an employment tribunal in accordance with s.48 of the ERA that he or she has been subjected to a detriment in contravention of s.47C.

PROTECTION AGAINST DISMISSAL

An employee who is dismissed is entitled under a new s.99 of the ERA to be regarded as unfairly dismissed if the effective date of termination³⁰ falls on or after 15 December 1999 and:

(a)the employee's pregnancy;

(b)the fact that the employee has given birth to a child, and the dismissal ends the employee's OML or AML period;

(c)the application of a relevant requirement, or a relevant recommendation, as defined by s.66(2) of the ERA²⁸;

(d)the fact that the employee took or sought to take OML, or availed herself of the benefits of any of the terms and conditions of her employment preserved by s.71 of the ERA during her OML period;

(e)the fact that the employee took or sought to take AML or parental leave;

(f)the fact that the employee declined to sign a workforce agreement for the purposes of the Regulations; or

(g)the fact that the employee performed, or proposed to perform, any functions or activities as a duly elected representative of members of the workforce for the purposes of the Regulations or a candidate in an election to become such a representative (reg. 20(3));

unless -

An employee who is dismissed will also be regarded as unfairly dismissed if the reason or principal reason for the dismissal is that the employee was redundant, and it is shown that:

Calculation of a week's pay

For the purposes of calculating a "week's pay" under Chapter II of Part XIV of the ERA, any week, in a period of 12 weeks ending on the calculation date, during which an employee was absent from work on OML, AML or parental leave, and remuneration was payable to him or her but the amount payable was less than the amount that would have been payable had he or she been working, is to be disregarded for the purpose of the calculation. Rather, account is to be taken of remuneration in earlier weeks so as to bring up to 12 the number of weeks of which account is taken (reg. 22).

References

¹ Article 2(2) of the Employment Relations Act 1999 (Commencement No.2 and Transitional and Saving Provisions) Order 1999.

² A draft of the Regulations is available from the Stationery Office, price £3. The draft Regulations were debated and approved by the House of Commons Standing Committee on Delegated Legislation on 2 December 1999, and were due to be debated on 9 December by the House of Lords when we went to press.

³ 31.3.99, Hansard (HC), col. 1198.

⁴ "Childbirth" means the birth of a living child or the birth of a child whether living or dead after 24 weeks of pregnancy (reg. 2(1)). This means that the earliest an employee can start her OML under the new statutory scheme is 9 January 2000, although that is more likely to be 13 February 2000.

⁵ Other than by a statutory provision for the time being specified in an order under s.66(2) of the ERA (reg. 7(3)).

⁶ 16.6.99, Hansard (HL), col. 311.

⁷ 23.2.99, Hansard (HC) Standing Committee E, cols. 55-57.

⁸ 23.2.99, Hansard (HC) Standing Committee E, col. 66.

⁹ 23.2.99, Hansard (HC) Standing Committee E, cols. 70-71.

¹⁰ "Job", in relation to an employee returning after AML or parental leave (but not OML), means the nature of the work which he or she is employed to do in accordance with his 0r her contract and the capacity and place in which he or she is so employed (reg. 2(1)).

¹¹ Section 5, para. 26.

¹² Representatives are "duly elected" if, at the election at which they were elected: the number of representatives to be elected was determined by the employer; the candidates for election as representatives of the workforce were relevant members of the workforce, and the candidates for election as representatives of a group were members of the group; no employee who was eligible to be a candidate was unreasonably excluded from standing for election; all the relevant members of the workforce, and all the members of a particular group, were entitled to vote for their representatives; the employees entitled to vote could vote for as many candidates as there were representatives to be elected; and the election was conducted so as to secure that, so far as was reasonably practicable, those voting did so in a secret ballot and the votes given were fairly and accurately counted (para. 3 of Schedule 1 to the Regulations).

¹³ 8.7.99, Hansard (HL), col. 1079.

¹⁴ ref: URN/1192, available on the DTI web site at www. dti.gov.uk or free from the DTI orderline, tel: 0870 1502 500.

¹⁵ Section 2, para. 13 of the DTI's consultation paper.

¹⁶ The minimum period required by the Directive is three months.

¹⁷ Section 2, para. 15 of the DTI's consultation paper.

¹⁸ 25.2.99, Hansard (HC) Standing Committee E, col. 122.

¹⁹ For these purposes, a year is the period of 12 months beginning (a) on the date on which the employee first became entitled to take parental leave in respect of the child in question, or (b), in a case where the employee's entitlement has been interrupted at the end of a period of continuous employment, on the date on which the employee most recently became entitled to take parental leave in respect of that child, and each successive period of 12 months beginning on the anniversary of that date.

²⁰ The upper age limit specified in the Directive is eight. The five-year limit was set because it takes children up to school age.

²¹ See Table 1 in Section 4 of the DTI's consultation paper.

²² "Business" includes a trade or profession and any activity carried on by a body of persons (whether corporate or unincorporated) (reg. 2(1)).

²³ para. 180 of the explanatory notes to the 1999 Act.

²⁴ para. 174.

²⁵ Section 4, para. 22 and table 1 of the DTI's consultation paper.

²⁶ 8.7.99, Hansard (HL), col. 1082.

²⁷ 23.2.99, Hansard (HC) Standing Committee E, col. 112.

²⁸ That is, a statutory requirement or recommendation in consequence of which she is suspended from work on maternity grounds.

²⁹ For these purposes, an act which extends over a period takes place on the last day of that period; and a failure to act is to be treated as done when it was decided on (regs. 3(3) and 19(6)) - that is, in the absence of evidence establishing the contrary, when the employer did an act inconsistent with doing the failed act or, if the employer has done no such inconsistent act, when the period expired within which the employer might reasonably have been expected to have done the failed act if it were to be done (regs. 3(4) and 19(7)).

³⁰ Within the meaning of s.97 of the ERA.

Maternity and parental leave: main points to note

Status of employment contract during maternity and parental leave

In its Fairness at work White Paper³¹, the Government proposed that "legislation should provide for the contract of employment to continue during the whole period of maternity or parental leave, unless it is expressly terminated by either party, by dismissal or resignation" (emphasis added). Present uncertainties over the status of the contract during extended maternity leave would be significantly reduced if it were clear that the contract continued during such absence, while the Directive requires the Government "to define the status of the employment contract or employment relationship for the period of parental leave".

The new maternity leave scheme put in place by the 1999 Act and the Regulations does not expressly state that the contract continues during additional maternity leave and parental leave. However, according to the explanatory notes to the 1999 Act³², the new s.73 of the ERA makes it clear that the contract continues during AML by conferring a right to leave rather than a right to return, and by providing that terms and conditions of employment (other than those relating to remuneration) continue to apply to any extent set out in regulations.

As the Government intended, the Regulations provide that conditions of employment which are always appropriate during an employment relationship, whether or not the individual is actually working, will continue to apply during AML and parental leave (see above ). The Regulations also ensure that employees' rights relating to seniority etc are suspended during such leave and not lost, and that the period of leave counts as continuous service for the purposes of determining eligibility for rights under the ERA. However, in general, employers are free to decide whether or not other terms and conditions should continue during the period of leave. If employees off sick would be entitled to a particular benefit, then it would be unlawful sex discrimination to exclude employees on AML from entitlement to it; but they have no right to be paid the same.

³¹ Cm 3968, para. 5.21.

³² paras. 167 and 175.

Exclusion of employees with children born or adopted before 15 December 1999 from right to parental leave

Working parents of children born or adopted before 15 December 1999 are not entitled to parental leave³³. The Government has said that this is in line with its legal advice³⁴, and will ensure that the demand for parental leave builds up slowly and so maximises employers' goodwill³⁵. But others, including the TUC and the Equal Opportunities Commission, have warned that it could be unlawful, and have urged the Government to reconsider. A legal challenge seems likely once the Regulations come into force, and parents employed by "emanations of the state", such as local authorities, may seek to rely on the Directive instead.

In Ireland, the exclusion of parents of children born or adopted before 3 June 1996 (the date on which the Directive was adopted) from entitlement to parental leave is the subject of a legal challenge by the Irish Confederation of Trade Unions; and the former EU Social Affairs Commissioner has written to the Irish Government in the following terms³⁶:

"... the Directive does not contain any provision permitting member states to set a date by which children in respect of whom the right to parental leave is exercised must be born. Clearly, the right to take parental leave under the Directive does not apply until the Directive is implemented in national law ... However, the condition which the Directive sets for the right to take parental leave is to have a child under the maximum defined age. By requiring children to have been born after the date of the Directive's adoption, the Irish Government has added a condition which is not permitted by the Directive. Had the Directive permitted member states to limit the right to take parental leave to parents with children born after the date of the Directive's adoption, a specific legal provision on this point would have been included."

The European Commission has been, and still is, expected to deliver a "reasoned opinion" on the matter under Article 226 of the Treaty of Rome. If the Irish Government does not comply with that opinion within the period laid down by the Commission, the latter may bring an action against the former before the European Court of Justice.

³³ reg. 13(3) of the Regulations.

³⁴ 11.11.99, Hansard (HC), col. 725.

³⁵ 5.11.99, Hansard (HC), col. 661.

³⁶ Letter from Padraig Flynn to David Andrews dated 11 March 1999.

Will parental leave be paid?

Any terms and conditions of employment required by regulations under the new s.76 of the ERA to continue during statutory parental leave cannot include terms and conditions about remuneration³⁷. The effect of this is to ensure that such leave cannot be required to be paid³⁸. Any requirement for employers to provide paid parental leave would require new primary legislation³⁹, although they are obviously free to choose to do so.

The House of Commons Social Security Committee has agreed to a report⁴⁰ in which it recommends that the Government should introduce a flat-rate method of payment for those taking parental leave on a trial basis, and establish an independent body to monitor the take-up and impact of parental leave. Take-up among fathers is estimated to be just 2%, compared with 35% among mothers, and there is concern that low-paid working parents will not claim their entitlement because they cannot afford to take a week's unpaid leave. The Secretary of State for Trade and Industry has announced that his department will monitor the take-up of statutory (unpaid) parental leave and report back to him on its success⁴¹.

Under existing benefit rules, a lone parent or a sick or disabled parent who is working will be able to qualify for income support while taking parental leave provided that he or she meets the normal qualifying conditions. The Government proposes to change the rules to make income support available for couples who would not otherwise qualify while on parental leave. The change will apply to couples on a low income taking statutory (unpaid) parental leave to care for a child who lives with them. Where both members of the couple work, income support will be available if both take parental leave at the same time. It will also be available when the only earner is taking parental leave and the family is in receipt of working families tax credit, disabled persons tax credit, housing benefit or council tax benefit on the day before the leave is taken⁴².

³⁷ s.77(2)(b) of the ERA.

³⁸ 8.7.99, Hansard (HL), col. 1081.

³⁹ 16.6.99, Hansard (HL), col. 318.

⁴⁰ "Social security implications of parental leave", available from the Stationery Office, price £19.50.

⁴¹ 4.11.99, DTI news release P/99/888.

⁴² 28.10.99, Hansard (HC), col. 957.