Maternity: draft Maternity and Parental Leave (Amendment) Regulations 2006

In the first of a series of articles on recent developments concerning maternity rights, Leigh Dewdney of Osborne Clarke looks at the maternity provisions contained in the draft Maternity and Parental Leave (Amendment) Regulations 2006.

The draft Maternity and Parental Leave (Amendment) Regulations 2006 implement some of the provisions of the Work and Families Act 2006, which received Royal Assent on 21 June 2006. The Act is a significant piece of legislation aimed at enforcing the Government's intention to give children the best start in life and parents more choice as to how they balance their working lives with their family responsibilities. In its February 2005 consultation document, Work and Families - Choice and Flexibility (on the Department for Business Enterprise & Regulatory Reform website), the Government underlined its commitment to supporting working families while allowing employers to plan for the future with greater certainty.

The Regulations come into force on 1 October 2006 , but the new maternity provisions will apply only to employees with an expected week of childbirth on or after 1 April 2007 .

The key changes that the Regulations make to the Maternity and Parental Leave Regulations 1999 and the Maternity and Parental Leave (Amendment) Regulations 2002 are discussed below.

Entitlement to additional maternity leave

Under current legislation, pregnant employees who meet the qualifying criteria are entitled to 26 weeks' ordinary maternity leave (OML) regardless of their length of service with their employer. In order to qualify for additional maternity leave (AML), pregnant employees must have at least 26 weeks' continuous service with their employer by the end of the 15th week before the expected week of childbirth.

From 1 October 2006 , employees who qualify for OML will also qualify for AML without the need for a minimum period of service. This means that all pregnant employees will be able to take 12 months' maternity leave. However, employers will be obliged to maintain employees' terms and conditions (except pay) only during OML.

The right to return to work will vary depending on the type of maternity leave taken; after OML an employee will have the right to return to the same job, whereas after AML the right will be to return to a similar job.

Increased statutory maternity pay

Statutory maternity pay will increase from 26 to 39 weeks from April 2007 in accordance with the draft Statutory Maternity Pay and Maternity Allowance (Amendment) Regulations 2006. In light of the above amendment in relation to additional maternity leave, all qualifying mothers will therefore be able to take advantage of the extended entitlement to statutory maternity pay.

Notice periods

Under the draft Statutory Maternity Pay and Maternity Allowance (Amendment) Regulations 2006, an employee who wishes to return to work early from her maternity leave will be expected to give her employer eight weeks' notice of her return. This is an extension from the current 28-day notice requirement.

If an employee attempts to return to work early without giving eight weeks' notice, the employer can delay her return in order to benefit from the eight weeks' notice period (extended from 28 days).

Similarly, if an employee, after having notified her employer that she intends to return before the end of her AML period, decides to return on an even earlier date, she is required to give her employer eight weeks' notice of the new return date. Likewise, if she intends to return to work later than the original return date that she had notified to her employer she will be required to give eight weeks' notice of the revised date.

Future guidance from the Government will make it clear that, if an employee gives her employer early notice that she will not be returning to work at the end of her maternity leave, her employment should not be terminated early as a result and she should not be deprived of any benefits to which she is entitled.

Reasonable contact

In response to calls from employers for greater certainty over their legal right to make contact with employees during maternity leave, the Regulations include a new provision entitling employers to make reasonable contact with employees on maternity leave. The meaning of 'reasonable contact' will be defined in future Government guidance.

Keeping in touch days

The Regulations introduce 'keeping in touch days'. These will allow an employee, if it is acceptable to her employer, to carry out up to 10 days' work during her maternity leave without bringing it to an end or jeopardising her right to maternity pay. Such work might include training and attendance at work.

Employers and employees will be free to agree how these days should be taken (for example, as a single block or as individual days) and the finer detail of any arrangements.

However, an employer cannot require such work to be carried out, nor can an employee demand that she carry out such work. Furthermore, such work will not be permitted during the two-week compulsory leave period immediately after the baby's birth.

From 1 October 2006, employees will be entitled to protection from detriment under the Employment Rights Act 1996, section 47C in respect of undertaking, considering undertaking and not undertaking any such work.

Furthermore, if an employee is dismissed by her employer for undertaking, considering undertaking or not undertaking any such work, she will have been unfairly dismissed in accordance with the Employment Rights Act 1996, section 99.

Removal of small employer exemption

The existing small employer exemption will be abolished by the Regulations. The exemption had been intended to protect an employer with no more than five employees from an unfair dismissal claim where it did not hold open a post for an employee returning from AML. However, this caused confusion in practice and opened up small employers to claims of sex discrimination.

Conclusion

It remains to be seen how the legislation will work in practice. Employers should review their existing arrangements, policies and procedures now and consider how best to meet their obligations under the Regulations after 1 October 2006 and 1 April 2007.

Next week's article will look at recent developments in relation to maternity issues.

Leigh Dewdney is a senior solicitor in the employment department at Osborne Clarke (leigh.dewdney@osbornclarke.com).

Further information on Osborne Clarke can be accessed at www.osborneclarke.com.