Trying to accommodate workers with children can often be a challenge, but as society and expectations change, so have working practices. With the advent of maternity and adoption leave and family friendly provisions, including flexible working and paternity leave, the law has tried to move with the times.
The Government is extending parental rights further with the introduction of new legislation in the form of the Work and Families Act 2006. This Act provides a framework for changes in the future, requiring further legislation to implement the new provisions. Our newsletter summarises some of the proposed changes and highlights the increased rights workers have to seek to accommodate family life and work.
Given their potential impact on business, all employers need to understand the complex plethora of rights and obligations in this area.
The New Rules
A number of changes have taken place already. Below are some of the rights that were introduced as of 1 October 2006, although the amendments will take effect only in relation to employees whose expected week of childbirth (EWC) is on or after 1 April 2007:
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The removal of the length of service requirement for additional maternity leave. Those who qualify for ordinary maternity leave will qualify automatically now for additional maternity leave.
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An increase in the notice requirements for women who wish to return early from maternity or adoption leave (from 28 days to 8 weeks’ notice).
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The introduction of ‘keeping in touch’ days whereby employees on maternity or adoption leave can work for up to 10 days without losing statutory pay or bringing leave to an end.
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The removal of the small employers’ exemption in relation to additional maternity leave. As with all other employers, employees of small businesses now have the right to return from additional maternity or adoption leave to the same or a similar job.
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The extension of statutory pay during maternity leave from 26 weeks to 39 weeks.
Further legislation requires to be implemented in relation to the following changes, also provided for in the Act:
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The extension of the existing right to request flexible working to employees with caring responsibilities for adults.
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The introduction of a new statutory right to additional paternity leave for up to a maximum of 26 weeks for employed fathers or partners of a mother or adopter (including men and women in same sex relationships).
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An increase in the statutory paid holiday entitlement under the Working Time Regulations to include the eight permanent bank holidays.
Changes to Maternity Leave
In relation to maternity, the current provisions continue to apply for qualifying employees whose EWC is on or before 31 March 2007. Such employees are therefore entitled to 26 weeks’ ordinary maternity leave regardless of length of service.
Under the new provisions, where a woman has completed 26 weeks’ continuous employment by the beginning of the 14th week before EWC, and the EWC is on or after 1 April 2007, she will be entitled to take additional maternity leave of up to 26 weeks. This will mean that such an employee will be entitled to a maximum of 52 weeks’ maternity leave.
Changes to Maternity Pay
Current provisions regarding Statutory Maternity Pay (SMP) provide for paid leave of up to 26 weeks’ maternity pay. The new Act provides for an increase in the SMP period to a maximum of 52 weeks. However, at present this is limited to 39 weeks for women whose EWC is on or after 1 April 2007. It is the Government’s intention to increase the maternity pay period to 52 weeks by the end of Parliament, thereby harmonising periods of maternity leave and maternity pay. Until then, from 1 April 2007, any period of leave taken beyond 39 weeks will remain unpaid.
The rights to maternity pay have been extended further in line with the new Age Discrimination Regulations. The requirement that a woman be aged 16 or over in order to be eligible for statutory maternity pay has been removed. This will apply to all women whose EWC was on or after 14 January 2007.
Changes to Adoption Leave
The same provisions will apply to those employees who have adopted a child. Currently, only employees with 26 weeks’ service are entitled to Statutory Adoption Leave. Under the new law, as with maternity leave, the qualifying period will be removed. Where a child is to be placed on or after 1 April 2007, an adoptive parent will be entitled to up to 26 weeks’ adoption leave and a further 26 weeks’ Additional Adoption Leave.
Changes to Adoption Pay
In line with the amendments to SMP, new Regulations have come into force which extend rights to Statutory Adoption Pay (SAP). From 1 April 2007, employees will be entitled to 39 weeks’ statutory adoption pay. As with SMP, the Government’s intention is to increase SAP to 52 weeks by the end of Parliament.
Change to the Period of Notice of Return
Previously, where a request was made to return to work early from statutory maternity or adoption leave, employees had to give their employer 28 days’ notice. Under the new provisions, employees must now provide their employer with 8 weeks’ notice.
The length of time an employer can postpone an employee’s early return to work, where the employee has failed to give the requisite notice, has also been extended to 8 weeks. However, it cannot be postponed to a date after the end of the relevant maternity or adoption leave period.
New ‘Keeping in Touch’ Days
In the past, employees returning to work (even for a short period) risked their statutory maternity or adoption leave being brought to an untimely end. The new provisions have introduced the concept of “keeping in touch” or “KIT days”. Since 1 October 2006, an employee has been able to carry out up to 10 days’ work during statutory maternity or adoption leave without losing statutory payments for that week. Employees are entitled to return at any time during the statutory leave period except during the 2 week compulsory leave period immediately following childbirth.
It is important to bear in mind that such work must be agreed between the parties and an employer has no right to require an employee to work during statutory maternity or adoption leave, nor does an employee have the right to work during the period. The dismissal of an employee because he or she undertook, considered undertaking or refused to undertake KIT days will be automatically unfair.
New ‘Reasonable Contact’ Provisions
The new provisions also confirm that reasonable contact with employees is permitted during the statutory leave period, with either party being entitled to make contact from time to time without the leave period being brought to an end.
Removal of Small Employer Exemption
At present, employers with five or fewer employees do not require to offer employees the same or similar work on their return from AML or adoption leave. Furthermore, where an employee is dismissed for a reason connected with pregnancy, childbirth, maternity or adoption leave, she will not have a claim for automatic unfair dismissal as would be the case in normal circumstances. From 1 April 2007, this exemption will be removed and all employers will be required to offer employees the same or similar work on their return.
Flexible Working Extended
From 6 April 2007, the right to flexible working will be extended to carers of adults. In order to qualify for the new right, the employee must have 26 weeks’ qualifying service and be (or expect to be) caring for a person aged 18 or over who:
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is married to or is the partner of the employee;
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is a relative of the employee; or
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lives at the same address as the employee.
The Regulations which will implement these provisions are currently in draft form and the final provisions are awaited.
Additional Paternity Leave & Pay
At present, employed fathers are entitled to 2 weeks’ Statutory Paternity Leave and Pay. This must be taken within 8 weeks of the child’s birth or the placement of an adopted child. Under the new legislation, the rights of fathers, partners of mothers and those who adopt a child will extend to up to 26 weeks’ leave. This will be known as Additional Paternity Leave (APL). Again, the Regulations are in draft and the final provisions are awaited.
Contact
Caroline Carr
(Information posted in January 2007 and may not have been updated at time of reading).