Benefits during ordinary maternity leave (OML)

During OML an employee has a statutory right to benefit from the terms and conditions which would have applied to her had she been at work, except for the terms providing for her "remuneration" Therefore, all contractual benefits (such as annual leave, pensions, health club membership, private use of a company car and so on) will continue during OML.

Benefits during additional maternity leave (AML)

A woman whose expected week of childbirth (EWC) started on or after 5 October 2008 is entitled to the same protection during AML as during OML - that is, she is entitled to benefit from the terms and conditions which would have applied to her had she been at work, except for terms related to her "remuneration".

Employees with EWCs before that date are only entitled to the benefit of a much more limited range of terms and conditions during AML:

• The implied obligation for the employer to preserve mutual trust and confidence.
• Disciplinary and grievance procedures.
• Any terms of employment relating to notice of termination by the employer.
• Any terms relating to contractual redundancy.

Enforcement

A woman who is deprived of any contractual or discretionary benefits due to having taken OML or AML may (depending on the facts) have one or more of the following claims:

• A claim for deduction from wages..
• A claim that she has been subjected to a detriment for a reason connected with pregnancy, giving birth, maternity suspension or taking OML or AML.
• A claim for breach of contract.
• A claim for automatically unfair dismissal, if there is a serious breach of contract and she treats herself as constructively dismissed.
• A claim under the Sex Discrimination Act.

Discrimination

An employer discriminates against an employee if it treats her less favourably than it would otherwise have done on the ground that she has exercised or sought to exercise her statutory rights to maternity leave, or on the ground that it is obliged to give her compulsory maternity leave. It is also unlawful discrimination during a "protected period" (from the start of pregnancy to the end of statutory maternity leave) to treat a woman less favourably on grounds of pregnancy.

Statutory maternity pay (SMP)

An employee will be 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 expected week of childbirth (EWC), and is still employed in that week.
• Her normal weekly earnings are not less than the Lower Earnings Limit (LEL) for National Insurance purposes.
• She gives at least 28 days' notice (or, if that is not reasonably practicable, as much notice as is reasonably practicable) of the date she intends SMP to start.
• She is still pregnant 11 weeks before the start of the EWC or has already given birth.
• She supplies a certificate from a midwife or doctor, confirming the date of her EWC. This must be given to the employer no more than three weeks after the birth or, if she has good cause for delay, as soon as reasonably practicable.
• She has ceased work.

Paternity leave and pay

Since 6 April 2003, employees, subject to qualifying conditions, have been entitled to:

• Either one whole week or two consecutive weeks' paternity leave.
• Statutory paternity pay (SPP) for up to two weeks.

Both must be taken within the period of 56 days beginning with the date of childbirth or the date of placement of an adopted child.

Statutory paternity leave (SPL)

The leave regulations govern;

• The right to take SPL and the circumstances in which individuals become eligible for SPL in respect of the birth of a child or the adoption of a child.
• When, and the period in which, SPL can be taken.
• The employee's notification obligations to their employer in respect of their exercise of their right to take SPL and, where necessary, the provision of evidence by the employee of their eligibility to take SPL.
• The impact on the employee's contract of employment of exercising the right to SPL.
• The right to return to work upon completion of SPL.
• Protection from detrimental treatment as a result of the employee's taking or seeking to take SPL, or because the employer believed that the employee was likely to take such leave.
• Automatic unfair dismissal, where the reason (or principal reason) for the employee's dismissal was their taking or seeking to take SPL, or the employer's belief that they were likely to take such leave.
• The relationship between statutory and contractual rights to paternity leave.

Eligibility

Employees might be eligible for SPL in relation to the birth or adoption of a child. The spouse, the civil partner or the "partner" of the child's mother or adopter will be entitled to take SPL if they satisfy the appropriate eligibility criteria.

The eligibility criteria for SPL differ slightly depending on whether the leave is to be taken in respect of a birth or adoption.

Length of leave

An employee is entitled to take a period of either one week or two continuous weeks' SPL. Each one- or two-week SPL entitlement relates to each child in respect of which the employee qualifies as an eligible employee.

A two-week SPL entitlement cannot be taken as two separate periods of one week: the entitlement to paternity leave is only to one period of leave. It is for the employee to choose whether that period is to be for one or two weeks.

Purpose of the leave

The purpose of SPL is for an eligible employee to care for the child or support the mother or adopter as the case may be. If an employee takes SPL for reasons other than those specified in the Leave Regulations, then they may commit an act of misconduct. This may entitle the employer to subject the employee to the employer's disciplinary process.

Protection from detriment or dismissal

The law protects employees from detrimental treatment and dismissal for reasons connected with their SPL rights.

Pregnancy and maternity leave

Key rights

The key rights are:

• Time off for antenatal appointments.
• Health and safety protection while pregnant and breastfeeding.
• Up to 52 weeks' maternity leave.
• Statutory maternity pay (SMP) for up to 39 weeks.
• The right to return to the same job.
• Priority for alternative employment in redundancy cases.
• The right to request flexible working conditions on return to work.
• Protection from dismissal, detriment or discrimination by reason of pregnancy or maternity.

Law provides statutory rights in relation to pregnancy, maternity leave and on return from maternity leave - for example, time off for antenatal care, the right to maternity leave and protection from dismissal.

The SDA protects employees against less favourable treatment on the grounds of pregnancy or in relation to maternity leave. In October 2005, for the first time, the law gave protection against less favourable treatment by an employer, from the time the employee becomes pregnant until the end of maternity leave.

In addition, employers have specific duties under the Management of Health and Safety at Work Regulations 1999 to protect the health and safety of pregnant employees, new mothers and those who are breastfeeding.

Work and Families Act 2006.

The Work and Families Act 2006 came into force in October 2006. As a result:

• Employees are entitled to one year's statutory maternity leave (made up of ordinary maternity leave (OML)  and additional maternity leave , regardless of length of service.
• The notice required of an employee who wishes to return early from maternity leave has been extended from 28 days to eight weeks.
• Employees can work for up to ten "keeping in touch" (KIT) days during their maternity leave without bringing that leave to an end.
• Statutory maternity pay has also been extended to 39 weeks for those who qualify for it.

Basic concepts

Expected week of childbirth (EWC)

The EWC is the week, measured from Sunday to Saturday, in which childbirth is expected to occur. It will be confirmed on a certificate (MAT B1) given to the employee by her doctor or midwife. Many of the employee's rights are calculated by reference to her EWC, regardless of whether birth in fact occurs earlier or later.

Ordinary maternity leave

OML is a period of 26 weeks' leave available to all employees, regardless of length of service, who give birth and comply with the notification conditions. It applies only to "employees", whether they are full time or part-time, fixed-term or permanent, and is not available to the self-employed or those who come within the statutory definition of "worker".

Additional maternity leave

AML follows immediately after the end of OML and lasts for up to a further 26 weeks, giving a total entitlement of 52 weeks' statutory maternity leave. All employees whose expected week of childbirth (EWC) started on or after 1 April 2007, and who qualified for OML, will also qualify for AML, regardless of their length of service.

Compulsory maternity leave

All employees must take a minimum of two weeks' maternity leave starting with the day on which childbirth occurs. This is extended to four weeks for factory workers. An employer will be guilty of a criminal offence if it allows an employee to work during compulsory maternity leave.

"Childbirth" means the birth of a living child or a still birth after 24 weeks of pregnancy.

Time Off for Dependants

An employee is entitled to be permitted by his employer to take a reasonable amount of time off during the employee’s working hours in order to take action which is necessary:

• to provide assistance on an occasion when a dependent falls ill, gives birth or is injured or assaulted,
• to make arrangements for the provision of care for a dependent who is ill or injured,
• in consequence of the death of a dependent,
• because of the unexpected disruption or termination of arrangements for the care of a dependant, or
• to deal with an incident which involves a child of the employee and which occurs unexpectedly in a period during which an educational establishment which the child attends is responsible for him.

Entitlement does not apply unless the employee: –

• tells his employer the reason for his/her absence as soon as reasonably practicable. and
• except where it cannot be complied with until after the employee has returned to work, tells his employer for how long he expects to be absent.

“Dependant” means, in relation to an employee -

• a spouse or civil partner.
• a child,
• a parent,
• a person who lives in the same household as the employee, otherwise than by reason of being his employee, tenant, lodger or boarder.