The changes taking place with regard to maternity and paternity leave have received widespread coverage in the press, but what exactly is the new regime? We have set out below the main provisions of the new rules, which apply to parents of children due to be born (or matched for adoption) on or after 3 April 2011.
First, a reminder of the previous position:
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Employed mothers can take maternity leave of up to 52 weeks, and a primary adopter can take adoption leave of up to 52 weeks. Statutory maternity/adoption pay is available (subject to qualification).
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Paternity leave is available to fathers (or the other adopter) for either 1 week or 2 consecutive weeks, within 8 weeks of the birth/adoption, assuming the eligibility criteria are met. Statutory paternity pay is available to those eligible.
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Unpaid parental leave is available to both parents (if they qualify), 13 weeks per child, to be taken before the child is 5, in weekly blocks, no more than 4 weeks per year. Different provisions apply if the child is disabled.
The Additional Paternity Leave Regulations came into force on 6 April and make significant changes to the position set out above.
In essence, parents can now (in effect) share the childcare duties in that first year. A “father” (or secondary adopter) can take up to 26 weeks’ Additional Paternity Leave (APL) on the following basis:
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The mother must have returned to work and must have been entitled to at least one of: maternity leave, statutory maternity pay, or maternity allowance. Accordingly, a mother could be self-employed.
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APL cannot start before 20 weeks after the birth. It must be taken before 12 months after the birth.
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While we have referred to the “father” it is more complete to say that the right is available to fathers, or (if not the father) to spouses/partners (including same sex partners) of the mother or primary adopter. However, it must be the intention that the employee is to have the main responsibility (other than the mother) for caring for the child.
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The minimum period is 2 weeks. APL must be taken in complete weeks, and in one continuous period.
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There are various technical and complex requirements as regards: eligibility (must have 26 weeks’ service as at 14 weeks before the due date of birth, or as at the date of notification of a child being placed for adoption), the giving of notification, counter-notice from the employer, the provision of declarations as to eligibility (the mother must provide a declaration as well as the employee), the variation of notifications that have already been given, and early return from APL. These detailed provisions are outwith the scope of this Update.
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An employer cannot refuse to let the employee take APL.
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The rules apply to employers of all sizes.
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APL is in addition to the 2 weeks’ Ordinary Paternity Leave we referred to above.
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Different provisions apply in the event of death of the mother.
It will be seen from the foregoing that the total of maternity leave and paternity leave could readily exceed 52 weeks – the maternity leave could start up to 11 weeks before the birth, and the maternity/paternity leave period could conceivably last until a year after the birth. The old provisions regarding parental leave remain in force, and may be taken by one or other of the parents at the end of the period of statutory leave. Holidays will of course also accrue during statutory leave (paternity as well as maternity), and the employee may well seek to add these to the end of any period of annual leave.
Additional statutory paternity pay may be due, but only to the extent that the mother has any unused entitlement to statutory maternity pay (i.e. if she returns before 39 weeks of maternity leave).
In most other respects, APL is to be treated in exactly the same way as maternity leave:
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Employers must not treat an employee less favourably, or dismiss them, because they have taken, or propose to take, APL (or because the employer believes the employee is likely to take APL) – that will give rise to a claim even if the employee does not have a year’s service.
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The terms and conditions of employment will continue (except as regards the right to remuneration) during APL.
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There is provision for “Keeping in Touch” days.
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The employee has the right to return to the job they were doing before APL started, with the same seniority and on the same terms.
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Crucially, the preferential treatment applying to those on maternity leave when their job becomes redundant (a preferential right to be given other vacancies that exist) applies to those on APL, so in any redundancy situation it will be essential to identify employees on APL as well as those on maternity leave.
An unresolved issue concerns employers who provide enhanced maternity pay for employees. Must the employer also enhance statutory paternity pay for those taking APL? The government have suggested not, but there is much doubt as to whether that is correct, and concern that an employer who does not do so could face a claim of discrimination. Litigation is likely to be required to resolve this issue.
The changes to the maternity/paternity regime are potentially significant – employers must face the prospect of not just new mothers, but also fathers, taking leave for an extended period of time, with all the consequent impact on the workplace and the allocation of duties. In practice, though, how common will it really be for the mother to go back to work and the father to take extended leave? The government estimated that the take-up would be between 4 and 8% of those eligible.
Nevertheless, this is something that could happen in any business, and all employers should now be reviewing their practices, and any written policies, with regard to family friendly leave and ensure compliance with the new law. Redundancy policies may also have to be considered, given the special treatment that must be afforded to those on APL in a redundancy situation. We are of course happy to assist employers in reviewing policies, or discussing any queries about the new regime.
Contact:
Douglas Strang