MATERNITY AND PATERNITY LEAVE

Transcription

1 MATERNITY AND PATERNITY LEAVE This article first appeared in Employment Law & Litigation volume 8 issue 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 Statutory Paternity Pay and Statutory Adoption Pay (General) Regulations 2002 SI 2002/2822 (SPPSAPR) and the Social Security (Paternity and Adoption) Amendment Regulations 2002 SI 2002/2690, which both came into force on 8 December 2002 and provides new rights to paid paternity and adoption leave.

2 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 th week 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 th week 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. An employee may vary the date on which intends to take OML, providing she gives her employer 28 days notice (or as much as is reasonably practicable): regulation 4(1A). This date cannot be earlier than the 11 th week before the EWC: regulation 4(2)(b).

3 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 Entitlement to additional maternity leave An employee must have 26 weeks continuous service by the start of the 14 th week before the EWC (previously an employee had to have one year s service by the 11 th week 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 th week 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 bound, during that period, by any obligations arising under those terms and conditions, subject only to the exception in section 71(4)(b) of the ERA.

4 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). The right to return after AML, or where the employee takes OML plus a period of more than four weeks parental leave or additional adoption leave, is to the same job as after OML, unless it is not reasonably practicable for her to do so. In such case, an employee has the right is to return to another job, which is both suitable for her and appropriate for her to do in the circumstances : regulation 18(2). As with OML, an employee is entitled to be employed on terms and conditions that are not less favourable than those, which would have applied had she not been absent. Failing which, the employee could claim she has suffered a detriment: regulation 19, that she is redundant and the employer has failed to comply with the relevant statutory provisions: regulation 10 and/or been unfairly dismissed: regulation 20.

5 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 th week 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 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). Leave must normally be taken within 56 days of childbirth: regulation 5(2)(a). However, if a baby is born premature, leave is extended to 56 days after the EWC: regulation 5(2)(b). Therefore, extending the paternity leave period.

6 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 th week 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 th week 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 if requested provide a declaration of entitlement to leave: regulation 6(3).

7 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 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. If requested by an employer, an employee must provide a declaration of entitlement to SSP: regulation 9(1)(b).

8 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 direct fax [email protected] The material contained in this fact sheet is provided for general purposes only and does not constitute legal or other professional advice. Appropriate legal advice should be sought for specific circumstances and before action is taken. Back to the top