Since the coming into force in April 2007 of new maternity legislation, employers have had to be aware of a raft of changes to the rights of their female employees. Naomi Flynn reviews the main changes.
Maternity Law: Are you up to date?
Law stated as at: 28 August 2007
As most employers will be aware, the law regarding maternity leave entitlements has recently changed significantly. All employees whose expected week of childbirth is on or after 1 April 2007 are now covered by the Maternity and Parental Leave etc and the Paternity and Adoption Leave (Amendment) Regulations 2006 (the "Regulations").
The effect of the Regulations, particularly the increase in statutory maternity pay, may mean that employees on maternity leave will now be away from work for longer. This is likely to be hardest felt by the smaller advertising agencies in the marketing sector, as they often need to have the same person working on each client account and do not have the resources to provide adequate cover whilst employees are on maternity leave. Despite this, the Regulations apply to all employers regardless of their size. As penalties for failure to comply with the Regulations can be substantial (for example a claim by the employee for sex discrimination), employers of all sizes in the marketing sector and beyond must ensure that they comply.
This article considers some of the key changes to maternity law that employers should be aware of which have been introduced by the Regulations.
Increase in period of Statutory Maternity Pay ("SMP")
Employees who are due to give birth on or after 1 April 2007 will benefit from SMP paid for 39 weeks instead of the previous entitlement of 26 weeks. SMP will be paid at a rate of 90% of the employee's average weekly earnings with no upper limit for the first 6 weeks, and the Standard Rate or a rate equal to 90% of the employee's average weekly earnings, whichever rate is lower, for the remaining 33 weeks (the Standard Rate of SMP is currently £112.75).
Entitlement to Additional Maternity Leave
All employees who are expecting a baby that is due to be born on or after 1 April 2007 may now take up to 52 weeks' maternity leave regardless of their length of service (previously only employees with 26 continuous weeks' service by the beginning of the 14th week before their expected week of childbirth were entitled to take the full 52 weeks' maternity leave). This leave still comprises 26 weeks' Ordinary Maternity Leave ("OML") and 26 weeks' Additional Maternity Leave ("AML") and the previous distinctions in the employment relationship between OML and AML will continue to exist (e.g. all contractual benefits with the exception of salary continue during OML but not during AML).
Notice Periods for early or late return from AML
Under the new Regulations, an employee who is due to give birth on or after 1 April 2007 must give her employer 8 weeks' notice if she wishes to return to work before the end of her maternity leave. This is an extension from the previous 28 day notice requirement and is designed to allow employees and employers to plan more effectively for the return to work.
If the employee returns to work before the end of her maternity leave without giving her employer 8 weeks' notice, the employer is entitled to postpone her return until the full 8 weeks' notice has been given.
If an employee, after notifying her employer that she intends to return to work before the end of her AML period, changes her mind and decides to return on an earlier date, she must give her employer 8 weeks' notice of the new return date. Similarly, if she intends to return to work later than the original return date she had notified to her employer, she will be required to give 8 weeks' notice of the revised date.
The new regulations stipulate that during maternity leave an employer may make reasonable contact with an employee. According to DTI guidance, "the frequency and nature of the contact will depend on a number of factors". The factors include the nature of the work, the employee's role, any agreement reached between the employer and employee and whether either party needs to communicate important information to each other.
Keeping in touch days
The new Regulations provide that during maternity leave, an employee can work for up to 10 days without stopping her entitlement to SMP or her maternity leave, provided both employer and employee have agreed to this. These days are referred to as keeping in touch days ("KIT" days).
The employee will be paid for the work carried out during any KIT days at a rate to be agreed between the employee and employer. If the employee is receiving SMP, the employer should continue to pay her SMP for the week in which any KIT day work is done by the employee; this can be deducted from any daily rate of pay that is agreed for the employee.
Payment for KIT days is to be at a rate to be agreed with the employer. However, employers should be aware of the following issues:
(a) An employee on maternity leave who works on a KIT day is still carrying out work. Therefore failing to pay her appropriate remuneration for that work would be a breach of contract, unless the employee specifically agrees to the variation.
(b) Even if an employee agrees to a variation, it would be a breach of the Equal Pay Act to pay a woman less than a male undertaking like work or work of an equal value.
(c) Failure to pay the employee could also make an employer in breach of the national minimum wage laws (although this will depend on what other pay the employee has received around that time).
The nature and timing of the KIT days are to be agreed in advance between the employee and employer, and could include the employee attending a client pitch or training. KIT days can be undertaken at any stage during the maternity leave period except during the first two weeks of compulsory maternity leave after the baby is born.
There is no obligation on the employer to agree to a KIT day and that an employee will be protected from being dismissed or subjected to a detriment as a result of refusing or requesting to work a KIT day.