POLICY. Maternity & Paternity Rights

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1 POLICY Maternity & Paternity Rights

2 MATERNITY AND PATERNITY RIGHTS SUMMARY Page 1 1. INTRODUCTION Page 1 2. CURRENT STATUTORY ENTITLEMENTS Page 1 3. CONTRACTUAL RIGHTS Page 1 4. EMPLOYER OBLIGATIONS INCLUDING RISK ASSESSMENTS Page 2 5. REPLACING ABSENT EMPLOYEES Page 2 6. PATERNITY RIGHTS Page 2 7. FLEXIBLE WORKING Page 2 8. CHILDCARE VOUCHERS Page 2 9. CONCLUSION Page 2/3 MATERNITY RIGHTS 1. INTRODUCTION Page 4 2. STATUTORY ENTITLEMENTS Page 4 (i) (ii) (iii) (iv) Leave and Pay Time Off for Ante-Natal Care The Right to Complain of Unfair Dismissal and Treatment Right to Return to Work Page 4 Page 5 Page 5 Page 5 3. CONTRACTUAL RIGHTS Page 6 4. EMPLOYER OBLIGATIONS INCLUDING RISK ASSESSMENTS Page 6 5. REPLACING ABSENT EMPLOYEES Page 6 6. PATERNITY RIGHTS Page 7 7. FLEXIBLE WORKING Page 7 8. CHILDCARE VOUCHERS Page 8 9. CONCLUSION Page 8 APPENDIX 1 MATERNITY AND PATERNITY POLICY, PROCEDURE AND TOOLKIT FOR NON-TEACHING STAFF APPENDIX 2 A GUIDE TO MATERNITY PROVISIONS FOR SCHOOL TEACHERS APPENDIX 3 CORPORATE RISK ASSESSMENT FOR NEW AND EXPECTANT MOTHERS

3 MATERNITY RIGHTS SUMMARY SHEET 1. INTRODUCTION All pregnant women have rights in relation to:- Paid time off work for ante-natal care Protection against unfair treatment or dismissal for pregnancy related reasons Time off for maternity leave Maternity benefit (Statutory Maternity Pay or Maternity Allowance) 2. CURRENT STATUTORY ENTITLEMENTS The Work and Families Act 2006 came into force on 1 October This Act increased rights for employees taking maternity leave from 1 April Employees have a right to 52 weeks maternity leave - 26 weeks ordinary maternity leave (OML) and 26 weeks additional maternity leave (AML) regardless of the number of hours worked or length of service. Employees have the right to return to the same job after maternity leave. Pregnant employees who meet qualifying conditions based on their length of service and average earnings are entitled to Statutory Maternity Pay (SMP) up to 39 weeks. All pregnant employees have the right to paid time off for antenatal care. Antenatal appointments can also include parentcraft and relaxation classes where an appointment is recommended by a registered midwife, doctor or health visitor. Employers are by law required to protect the health and safety of employees who are pregnant, have recently given birth, or who are breastfeeding. Pregnant employees and those on maternity leave are protected under sex discrimination legislation which outlaws unfair treatment, including dismissal, on grounds of their sex, pregnancy or maternity leave. Employers need to make reasonable contact with employees on maternity leave for a number of reasons such as informing them of vacancies, workplace developments and discussing arrangements for return to work. In addition, employees may undertake up to ten Keeping in Touch Days (KIT) during their maternity leave allowing work under their contract of employment without bringing the leave to an end or losing SMP. KIT days are not limited to the employee s normal job and can be used for attending training events, appraisals, meetings etc. 3. CONTRACTUAL RIGHTS In addition to statutory entitlements there are contractual entitlements for teaching and non-teaching staff. For details of the occupational maternity provisions for non-teaching staff see Appendix 1. The Occupational Maternity Scheme for teachers is set out in the Conditions of Service for Teachers (Burgundy Book). For an over-view of this scheme please see Appendix 2.

4 4. EMPLOYEE OBLIGATIONS In order to take advantage of the right to ordinary and additional maternity leave employees must give their employer the proper notification including the Expected Week of Childbirth (EWC) and when they intend maternity leave to start. Maternity leave can commence no earlier than the 11 weeks before the EWC. Maternity leave can also be triggered by the actual childbirth, or by a pregnancy related absence if this happens from the start of the 4 th week before the EWC. Employee s are not allowed to work during the first 2 weeks after giving birth known as compulsory maternity leave. 5. REPLACING PREGNANT EMPLOYEES Make clear in all correspondence the reasons for the temporary nature of the job. Check with the LA, Staffing Section, Children and Young People s Services regarding payments for cover. 6. PATERNITY RIGHTS Statutory Paternity Leave and Statutory Paternity Pay gives eligible employees the right to take one or two weeks paid leave. 7. FLEXIBLE WORKING REGULATIONS The Employment Act 2002 introduced a right for eligible employees to request a permanent change to their contract for the purpose of balancing childcare responsibilities with working commitments. The Work and Families Act 2006 introduced a significant change by extending the right to request flexible working to carers of qualifying adults. This right applies from 6 April CHILDCARE VOUCHERS SCHEME Durham County Council operates a childcare voucher scheme. This is a salary sacrifice scheme which can be used as payment or part-payment for the provision of childcare. For further information see Childcare Vouchers Policy 9. CONCLUSIONS Ensure employees understand their rights and obligations Carry out risk assessments and take appropriate action where health and safety risks exist Encourage early notification of pregnancy Allow time off for ante-natal appointments Establish when leave will commence Write to the employee within 28 days of receiving notification confirming receipt and advising the employee of their return date If an employee does not wish to return agree a finishing date Where sickness occurs by the fourth week before the EWC establish whether it is pregnancy related as maternity leave may be triggered Be reasonable about notification requirements Ensure employee receives all entitlements during maternity leave

5 Note special considerations when dealing with redundancy Keep in touch with employee during her maternity leave Ensure employee is not disadvantaged because of her pregnancy MATERNITY RIGHTS 1. INTRODUCTION - All pregnant women have rights in relation to the following:- - Paid time off work for antenatal care - Protection from unfair treatment including dismissal for pregnancy related reasons - Time off for maternity leave - Maternity benefit (Statutory Maternity Pay or Maternity Allowance) Entitlements to these rights are governed by:- - Contractual agreement - Employment Relations Act Sex Discrimination Act Maternity and Parental Leave Regulations Employment Act Work and Families Act 2006 The contractual rights given in the various national conditions of service which apply To employees are reproduced as follows:- APPENDIX 1 - Non-teaching staff conditions APPENDIX 2 - School Teachers Conditions 2. STATUTORY ENTITLEMENTS (i) Leave and Pay *Leave - 52 weeks Maternity Leave:- 26 weeks Ordinary Maternity Leave (OML) and 26 weeks Additional Maternity Leave (AML) *Pay - SMP is payable for 39 weeks Women who are not entitled to SMP but meet qualifying conditions based on their recent employment and earnings may claim up to 39 weeks Maternity Allowance, paid direct by Jobcentre Plus - The current rate of SMP is 90% of earnings for the first 6 weeks (higher rate) and lower rate ( as at 1 st April 2007) for the remaining 33 weeks. (ii) Time Off for Ante-Natal Care All pregnant employees, regardless of hours worked, pay or length of service, have the right to paid time off for antenatal care. If requested to do so the employee must provide evidence of appointments. Such time off and any replacement costs are regarded as a cost to school budgets. Antenatal appointments can also include parentcraft and relaxation classes where an appointment is recommended by a registered midwife, doctor or health visitor. (iii) The Right to Complain of Unfair Dismissal or Treatment Pregnant employees and those on maternity leave may pursue the following claims if dismissed or treated less favourably:-

6 Automatically Unfair Dismissal It is automatically unfair to dismiss an employee for a reason connected with her pregnancy or the fact that she has taken maternity leave. Protection from Detriment An employee must not be subjected to any other detriment because of her pregnancy or her intention to exercise her right to maternity leave. Examples of detrimental treatment include a unilateral change in terms and conditions, a loss of status or the removal of a contractual benefit. Sex Discrimination Unfair treatment connected with pregnancy or maternity leave is sex discrimination under the Sex Discrimination Act Employers may be liable not only if they treat an employee unfairly but also if she is treated unfairly by colleagues. Redundancy and Maternity Leave It is automatically unfair to select an employee for redundancy on the grounds of pregnancy or because they are on maternity leave. This would also be direct discrimination. A pregnant worker can be treated the same as other employees in the pool of selection. As long as a fair selection process is applied across the pool of selection, it is possible that a pregnant worker may be selected for dismissal by reason of redundancy. However, where an employee has commenced her maternity leave and is selected for redundancy she is entitled to be offered suitable alternative employment before the end of her existing contract. If Governing Bodies are considering dismissing a pregnant employee it is strongly recommended that they seek advice. (iv) The Right to Return to Work Apart from a redundancy situation, detailed above, an employee has the right to return to the job in which she was employed under her original contract of employment. She should also come back on terms and conditions not less favourable than those that would have applied to her if she had not been absent. Job for this purpose, refers to the nature of work in which she is employed to do, along with the place and capacity of work. Employees cannot return to work within 2 weeks of the actual date they give birth. Employers should have maintained appropriate contact with the employee during her maternity leave. It is assumed that an employee will return to work at the end of her AML, unless the employee provides the necessary notification of an early return to work. An employee who does not want to return to work after maternity leave must give their contractual notice to their employer. 3. CONTRACTUAL RIGHTS See Appendix 1 for contractual rights for non-teaching staff. The Occupational Maternity Scheme for teachers is set out in the Conditions of Service for Teachers (Burgundy Book). An overview of the provisions is attached at Appendix 2.

7 4. EMPLOYER OBLIGATIONS Ensure that the employee knows what is required of her as well as her entitlements, i.e. who she notifies and when regarding pregnancy, EWC, intention to take maternity leave, the date the leave will begin. The employer must write to the employee within 28 days of receiving the notice of the leave plans. Details sent out must include advising her about the expected date of return to work. This will be 52 weeks from the start of maternity leave. A model letter is included within the Maternity and Paternity Toolkit (Appendix 1). Ensure that risk assessments are carried out for new and expectant mothers and reviewed on a regular basis during the pregnancy and her return to work. A starting point for the risk assessment is the Health and Safety Code of Practice for the Protection of New and Expectant Mothers at Work. The Corporate Risk Assessment for New and Expected Mothers is attached at Appendix 3. Where risks are identified, which may adversely affect the health and safety of the employee or their baby, the manager should look at certain options:- A temporary adjustment of her working conditions and/or her hours of work; An offer of suitable and appropriate alternative work if it is available her normal rate of pay should be provided; Where the above opportunities are not feasible, provide her with paid leave for as long as necessary to protect her, and/or the child s, health and safety. 5. REPLACING ABSENT EMPLOYEES The School can arrange cover for the absence either by using existing teaching staff (thereby making a saving) or paying for full-time/part-time supply cover. On recruiting a replacement for an employee who is absent for maternity reasons it should be made clear at all stages of recruitment, and put in writing in appointment letters and statements of conditions of employment, that the job is temporary and will terminate on the return to work of the absent employee. 6. PATERNITY RIGHTS Following the birth of a child, the rights to Statutory Paternity Leave and Statutory Paternity Pay will give eligible employees the right to take one or two weeks paid leave to care for the child or support the mother. Statutory Paternity Pay is paid at the same rate as Statutory Maternity Pay. Employees must have been continuously employed for 26 weeks by the end of the 15 th week before the EWC. Employees must be the biological father of a child, or who is married to or in a civil partnership with or the partner of the child s mother. They must expect to have responsibility for the upbringing of the child and the time off must be taken for a reason connected to caring for the child or supporting the child s mother.

8 Paternity leave must be taken in blocks of a week. Where the employee wishes to take the full 2 weeks they must be taken consecutively, or the second week will be lost. The leave must be taken at or around the time of the birth normally within 56 days of the child s birth to ensure paternity payments can be made. Leave can start on any day of the week and the employee should normally choose to start their leave from a specific date. This will be either: - the date the child is born; or - a certain number of days for weeks after the child is born; or - from a pre-determined date after the first day of the EWC if the child has not been born by this date, the employee must choose another date. If the employee chooses to start his/her leave on the date of the child s birth and they are at work that day, then the leave will actually commence on the following day. Only one period of leave is available per pregnancy. The employee must notify their employer of the EWC, the length of the leave requested and the date the leave will start by the end of the 15 th week before the EWC. Local Government conditions of service include an entitlement to paid Maternity Support Leave (MSL) available to non-teaching staff to help expectant or new mothers at or around the time of childbirth. Eligible employees will be able to take 1 week of MSL and 1 week of statutory paternity leave. For further details see Appendix FLEXIBLE WORKING REGULATIONS The right to flexible working allows eligible employees to request a permanent change to their contract for the purpose of balancing childcare and caring responsibilities with working commitments. It is not a right to insist on a change but employers have a statutory duty to consider applications seriously. It is fundamentally important that the set procedure and timescales within the statutory regulations are followed and that requests are only refused when there are clear business reasons for doing so. Failure to do this may result in a complaint to an Employment Tribunal. There is also the potential for employees to bring a claim of sex discrimination under the Sex Discrimination Act 1976 if requests to alter working arrangements are unreasonably refused. Full details of the regulations and procedure are in the Flexible Working Procedure and Family Leave Policy. 8. CHILDCARE VOUCHERS Durham County Council operates a childcare voucher scheme. Childcare vouchers can be used as payment or part-payment for the provision of childcare in the UK. Employees registering for childcare vouchers are required to sacrifice part of their salary in return for vouchers. Employees benefit in paying less in National Insurance Contributions as childcare vouchers are exempt. For further details see the Childcare Vouchers Policy.

9 9. CONCLUSION Maternity rights are complex. To ensure fair and consistent treatment and avoid problems which could result in complaints to employment tribunals, the following points should be considered:- - ensure that employees who become pregnant know their rights under statutory and/or contractual provisions - ensure that risk assessments are carried out for new and expectant mothers and that they are reviewed on a regular basis during the pregnancy and return to work - allow paid time off to attend antenatal appointments - make sure that employee s are not treated unfairly, including by other colleagues - write to your employee telling her when she is due back at work - keep in touch with employees who are on maternity leave Perhaps most important is to make clear an employee's statutory and contractual rights as soon as she informs you that she is pregnant. This should be explained in as much detail as is necessary to make the rights and requirements perfectly clear. IT IS IMPORTANT TO SEEK THE ADVICE OF THE STAFFING SECTION, CHILDREN AND YOUNG PEOPLE S SERVICES ON THE CONTENTS OF ANY CORRESPONDENCE IT IS PROPOSED TO ISSUE TO AN APPLICANT FOR MATERNITY LEAVE. Policy adopted on: Spring Term 2015 by Finance Committee Policy review date: Spring Term 2016

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