On 1 October 2006, the Work and Families Act 2006 was introduced. This made some important changes to the law on maternity and adoption leave which, as set out below, will need to be reflected in employers’ maternity and adoption policies.
Statutory Maternity Pay and Statutory Adoption Pay will increase from the current 26 weeks to 39 weeks for those employees who adopt or give birth on or after 1 April 2007. The method for calculating statutory pay remains the same.
Whilst statutory pay has increased, Ordinary Maternity/Adoption Leave and Additional Maternity/Adoption Leave remain at 6 months each. Therefore, employees are now entitled to be paid statutory pay during the first three months of Additional Leave.
The distinction between Ordinary Leave and Additional Leave will continue, so that employees are not entitled to contractual benefits during Additional Leave unless expressly stated in their contracts. During Ordinary Leave, it remains the same that employees are entitled to the benefit of all of the terms and conditions of their contracts of employment (such as contractual holiday, insurances and, possibly, bonuses).
Service and Notice Requirements
There is no longer a requirement that employees have 6 months’ continuous service before they are entitled to take Additional Maternity or Adoption Leave. Therefore, an employee who qualifies for Ordinary Maternity/Adoption Leave will also qualify for Additional Maternity/Adoption Leave.
The notice an employee must give if changing the date of return to work from maternity leave or adoption leave has been increased from 28 days to 8 weeks.
It has also been clarified that the right to return to work applies to all mothers and adopters after maternity/adoption leave, regardless of the size of the employer.
Keeping in Touch Days
One of the key changes introduced is the concept of “keeping in touch days”. The current law, which shall continue to apply until 31 March 2007, is that should a female employee carry out any paid work for her employer during any part of maternity leave, she will automatically bring her maternity leave to an end.
Under the new law, employees who give birth or adopt on or after 1 April 2007 will be entitled to work for 10 days during their maternity leave by way of keeping in touch days. Keeping in touch days may be useful so that employees can attend training sessions, or merely just to keep in touch and up to date with what is happening in the office. Keeping in touch days must be agreed in advance, and cannot be foisted upon an employee. In the same way, an employee cannot force their employer to allow them to come into work. Employees will be protected from suffering any detriment because they took, considered taking or did not take keeping in touch days. It will be automatically unfair to terminate an employee’s employment for the same reasons.
Statutory Maternity/Adoption Pay must be paid for keep in touch days. However, the parties may agree (in advance) to a higher level of remuneration for working such days.
What should employers be doing?
Employers should make sure that their Employee Handbook is updated to reflect these amendments before they begin to apply. This may mean that the sections on maternity and adoption leave have to be split into two sections – so that employees who are due to give birth or adopt both before and after 1 April 2007 are clear as to what their rights are. Employers who offer enhanced benefits may consider amending these to take into account the longer periods of statutory maternity and adoption pay.
Many small employers find regularly updating their Handbooks to deal with these changes costly and time consuming. As such, they may consider a general review of the Handbook so that their employees are merely told that the company complies with statutory minimum procedures, from time to time in force. Employees who require further information can be directed to websites such as www.direct.gov.uk – which is provided by the Government and contains information for employees on their statutory rights. The downside to having a short statement of this nature in the Handbook is that employers and employees may remain oblivious to the law as it stands – which could lead to inadvertent breaches by the employer. When the employee finds out that they have not been treated appropriately, the matter may well end up as a dispute in the Employment Tribunal.
It is important to note that the changes to maternity and adoption leave and pay will only affect those employees who give birth or adopt on or after 1 April 2007. Therefore, employers should start preparing now for the new rights and notify employees whose expected week of childbirth is on or after 1 April 2007 of their new rights.
Are these the only amendments for the time being?
No. It is intended to change the paternity leave rights so that fathers will be entitled to up to 26 weeks’ paternity leave, some of which may be paid, if the mother returns to work soon before her maternity leave entitlement has expired. Currently, fathers are entitled to only 2 weeks statutory paternity leave. This change has not yet been implemented – much to the relief of employers as it is likely to be a challenge to administer – but it is likely that the Government will revisit this issue in the not too distant future.