Employees whose babies are due on or after 30 April 2000 now have new minimum maternity rights under the Maternity & Parental Leave Regulations 1999.
All employees are entitled to “ordinary maternity leave”. Employees who have been continuously employed for one year at the beginning of the 11th week before the week in which the baby is due are entitled to “additional maternity leave”.
An employee returning from ordinary maternity leave is entitled to return to the same job. An employee returning from additional maternity leave is entitled to return to the same job unless this is not reasonably practical in which case her entitlement is to return to a job which is both suitable and appropriate.
The new provisions contain considerable detail. The rest of this bulletin summarises their basic structure. Employers should give immediate consideration to amending staff handbooks concerning maternity leave procedure, but should seek further advice on the detail of the Regulations prior to doing so.
Ordinary Maternity Leave
Ordinary maternity leave runs for 18 weeks. During this period the employee retains all her contractual rights except salary or wages. Many employees will of course be entitled to statutory maternity pay. The employee simply reports for work at the end of the 18 week leave period but must give the employer 21 days notice if she wishes to return early.
The Regulations specify when ordinary maternity leave should commence and set out certain notice requirements:
- The employee must give notice to her employer of her pregnancy, the expected week of childbirth and the date on which she wishes her ordinary maternity leave to start – which cannot be before the beginning of the 11th week before the week in which it is expected the child will be born. The employer can require the notice to be in writing and can also require the employee to produce a medical certificate stating the expected date of confinement.
- If childbirth occurs before ordinary maternity leave has started the leave will automatically be triggered and the employee must give notice to the employer as soon as is reasonably practicable.
- If an employee is absent from work wholly or partly because of pregnancy or childbirth after the beginning of the 6th week before the week when the baby is expected to be born, ordinary maternity leave will automatically be triggered and the employee must give her employer notice as soon as is reasonably practicable.
- There is a compulsory two week period of maternity leave commencing with childbirth and ordinary maternity leave will be extended to cover this requirement if necessary.
Additional Maternity Leave
Additional maternity leave (if applicable) commences on the day after the last day of the employee’s ordinary maternity leave and continues until the end of the period of 29 weeks beginning with the week of childbirth.
During additional maternity leave the employee’s entitlements under her contract are limited to certain specified terms.
The effect of the Working Time Regulations is such that an employee on additional maternity leave will continue to accrue holiday leave.
An employee is only obliged to give notice to her employer of her desire to return to work at the end of the additional maternity leave period if the employer gives the following notice to the employee:
- No earlier than 21 days before the end of the ordinary maternity leave period the employer can require an employee who is entitled to additional maternity leave to give notice of the date of childbirth and whether she wishes to return to work after her additional maternity leave period.
- The request must be in writing and must state how the employee can determine the date on which the additional maternity leave will end and the consequences of a failure to respond to the request.
- Penalties for failure to respond are not prescribed in the Regulations and therefore should be set out in a disciplinary procedure.
An employee who wishes to return to work before the end of the additional maternity leave period must give the employer 21 days notice