18 Oct 2007


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Maternity leave

One of my employees is pregnant and has enquired about maternity leave? What is the current state of play regarding maternity leave and pay and what are my obligations?

As the nation continues to struggle to achieve a work-life balance, the government’s latest steps to assist in maternity leave have certainly been welcomed by working parents and carers of adults.

However, according to Shiva Shadi, an associate solicitor at Davis Blank Furniss solicitors, the Work and Families Act 2006 has also had a significant impact on employers regarding maternity leave.

“Whilst some of the penalties for failing to adhere to the new regulations may, at first glance, seem palatable, the reality of the damages that an employment tribunal may award could be far higher than first envisaged,” she says.

“Therefore retailers need to be aware not only of the changes, but also the implications for failing to properly implement the new provisions.”

The changes to maternity leave and pay that have already come in to force are:

•Whereas previously, women needed to have been continuously employed for a set period of time before qualifying for additional maternity leave, this is no longer the case. All women who currently qualify for ordinary maternity leave (the first six months) will also qualify for additional maternity leave. Therefore all women will now be able to take twelve months maternity leave. However retailers need to only continue to provide full contractual benefits (except pay) during ordinary maternity leave.

•Statutory maternity pay and statutory adoption pay have been increased from 26 weeks to 9 months, with a view to further increasing this to 12 months.

•The issues surrounding the difficulties of retailers and their employees maintaining some level of contact has been addressed to a certain extent by the introduction of ‘keeping in touch’ days, whereby employees on maternity leave have an opportunity to work up to a maximum of 10 days (excluding the first two weeks immediately after the birth) without losing their right to receive statutory maternity pay.

This, warns Shadi, has to be by mutual agreement and can not be forced on an employee nor automatically expected by an employee to be offered by her employer.

•Eight weeks notice is now required to be given by women who wish to come back to work early following a period of maternity leave as opposed to the previously required notice of 28 days.

According to Shadi, this should ensure that retailers have sufficient time to plan for the return of an absent employee and employers will be afforded protection if they wish to refuse a request from a female employee who wishes to return to work without providing the required eight weeks notice.

Retailers should be warned, says Shadi, that if a mother gives an early warning that she does not intend to return to work at the end of her maternity leave, this does not automatically result in her employment being terminated or prevent her other benefits from accruing.

Shadi also points to the extension of the right to request flexible working to those who care for adults.

Previously the right to request for flexible working hours only covered carers of children under six or disabled children under eighteen

However, the existing provisions were extended from 1 April this year to those who have 26 weeks continuous service and care for an adult. This includes their spouse, partner, civil partner, a relative (including half- blood), adoptive person and in-laws, or someone living at the same address as the employee.

There are strict procedures, however, that need to be followed by employers and employees alike, failure of which could render the request invalid or result in a retailer facing numerous potential claims at the Tribunal.

Although the penalty facing employers who fail to adhere to the correct procedures or unfairly refuse a flexible working request is a maximum award of eight weeks pay (capped currently at £310 per week), Shadi says employers could also be faced with a claim for unfair dismissal, constructive dismissal, automatic unfair dismissal or sex discrimination.

She stresses that retailers should therefore be prudent by:

• Complying with set procedures
• Addressing their mind to the request being made
• Offering alternative options
• Considering a trial period
• Only declining a request where there is a recognised business ground
• Not rejecting a request outright if there is a question in relation to eligibility

Yet to come into force

• New statutory right for fathers to take up to 26 weeks additional paternity leave on the basis that either the mother or father will be on official leave at any one time.

• The extension of statutory maternity pay from nine months to twelve months.

“Retailers should (if they haven’t already) incorporate the new provisions into their internal policies and procedures, but more importantly ensure that they are put into practice,” says Shadi

“The general consensus at the moment is that the ‘family friendly’ regulations improve morale and retention of staff, thereby reducing recruitment costs. However, the extent of the impact of losing key staff for extended period of time still remains to be measured.”

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