New maternity laws explained

In December 2004, the government published its report: "Choice for parents, the best start for children: a 10-year strategy for childcare". The report aimed to deliver a better work/life balance, which had been a key pledge in New Labour's manifesto. This commitment was enshrined in the 2005 Queen’s speech, in which the Labour government promised legislation that would, "offer greater support for working families by extending maternity benefits and improving the provisions of childcare". Fulfilling promises – The Work and Families Act 2006 The government's desire to provide a better work/life balance manifested itself in the Work and Families Act 2006, which provided the government with the green light to introduce, among others, the following two pieces of legislation:

• The Maternity and Parental Leave and the Paternity and Adoption Leave Regulations 2006 (MPL); and
• The Statutory Maternity Pay, Social Security (Maternity Allowance) and Social Security (Overlapping Benefit) (Amendment) Regulations 2006.

Who is entitled to Statutory Maternity Leave and what employment benefits are protected? Since April 2007, all pregnant employees have been entitled to take up to one year’s (52 weeks) maternity leave, regardless of length of service with their employer. Although an employee may take 52 weeks maternity leave, it is divided into two distinct periods:

• Ordinary Maternity Leave (OML) - During this time an employee is guaranteed 26 weeks’ leave during which the contract of employment continues, affording the pregnant women all her contractual benefits except (unless otherwise agreed) wages or salary.
• Additional Maternity Leave (AML) - This consists of a further 26 weeks’ leave during which an employee is entitled to a much more limited range of terms and conditions. In fact, the employer is only obliged to preserve the mutual trust and confidence between employee and employer, maintain disciplinary and grievance procedures, respect any terms of employment relating to notice of termination and any terms relating to contractual redundancy.

Although an employer only has to comply with a statutory minimum during AML, many employers provide a range of enhanced benefits. When must an employee notify an employer that she is pregnant? An employee must inform her employer by the end of her 15th week before the baby is due that she is pregnant and she must also inform an employer when she wants her maternity leave to start. In practice, though, everyone benefits if the knowledge is shared earlier so that necessary arrangements can be made to cover the period of employment while the mother is away. When should Statutory Maternity Leave be taken and for how long? A woman can choose when to start maternity leave. However, the maternity leave period cannot start until the 11th week prior to the Expected Week of Childbirth (EWC). While it is up to an employee to decide how much maternity leave they wish to take, up to the 52-week maximum, the regulations stipulate that a minimum of two weeks’ compulsory maternity leave must be taken immediately following the birth of the child. When is an employee entitled to Statutory Maternity Pay (SMP)? An employee is entitled to SMP if:

• she has been continuously employed for at least 26 weeks at the end of the qualifying week, which is the 15th week before the EWC;
• her normal weekly earnings are at least the lower earning limit for national insurance purposes;
• she has supplied a certificate (MAT B1) from a doctor;
• she is still pregnant 11 weeks before the start of the EWC or has already given birth; and
• she has stopped work.

Are employers counting the cost of SMP? Once these conditions are met an employee is entitled to receive from her employer up to 39 weeks’ SMP. Employees should be aware that SMP is payable at two different rates:

• For the first six weeks an employee will receive 90% of their normal weekly earnings. Normal weekly earnings are calculated as a weekly average of the employee’s total gross earnings from the employer during the eight weeks prior to the 15th week before the EWC.
• After six weeks, a flat rate of £112.75 a week from 1 April 2007 or, if less, 90% of her average weekly earnings for the remaining 33 weeks. The flat rate is subject to a review every April.

The government intends to increase SMP to 52 weeks from 2010, although, at present, no fixed date has been decided. Does an employee get time off for antenatal appointments? All pregnant employees are entitled to paid time off to attend antenatal appointments, so long as these appointments are made on the advice of a registered medical practitioner. Antenatal classes are not restricted just to medical examinations, but also include relaxation and parent-craft classes. With the exception of the first antenatal appointment, an employer is allowed to ask for evidence of any further appointments. Accordingly, an employee should be able to show on request, both a certificate confirming the pregnancy (MAT B1) and an appointment card showing the date of the forthcoming appointment. During the time off for an antenatal appointment an employee must be paid at her usual hourly rate of pay. Keeping in touch – communication and working during maternity leave Before the Work and Families Act 2006 there was a financial disincentive to work during maternity leave, as by simply turning up to work, a woman on maternity leave lost a whole week of SMP. To remedy this the government introduced two new measures.

1. An employer now has the option to make ‘reasonable contact’ with the employee from time to time during maternity leave. This enables an employee to keep abreast of changes in the workplace, either via telephone, email or face to face, facilitating an easier return to work once maternity leave is over.
2. ‘Keeping in touch’ days. From April this year, an employee is entitled to work a total of 10 ‘keeping in touch’ days, during which she can carry out work and be paid for this without losing her SMP. This benefits employers and employees alike by keeping the employee on maternity leave in the work ‘loop’. However, a ‘keeping in touch’ day is optional: the employer does not have to offer them and the employee does not have to work them if they are offered.

What happens when the employee returns to work? When a mother returns to work she has the basic right to return to her former role on the same terms and conditions. However, the mother’s exact rights vary depending on whether the mother returns after OML or AML.

• OML – same job and same terms As long as the mother returns to work after OML (she takes no more than 26 weeks’ maternity leave), she will be entitled to return to the same job in which she was employed before her absence. Furthermore, she will be entitled to any improvements to her contract as if she had not been away, such as a pay rise for her grade or level. The only circumstance in which an employee may not return to work in her former role is where a genuine redundancy situation has arisen. In this case an employee is entitled to be offered a suitable alternative vacancy.
• AML – more time but less rights The situation is different when an employee returns to work after AML (she takes more than 26 weeks’ maternity leave). Although she is still entitled to return to the same job and on the same conditions, her rights differ if there have been changes to the workplace. If there is a reason why it is not reasonably practicable for her to return to her former role, for example a reorganisation, then the employee must be offered a similar job on terms and conditions that are no less favourable than her original employment.

Final thoughts The jury is still out on the economic impact of the statutory framework. However, increased state intervention in the workplace has contributed to a better work/life balance for many women. This is illustrated by the fact that in 2005 only 20% of women changed their employer once they had given birth, a reduction from 41% in 2002.