Family Friendly article
April 2007 saw significant changes to the law in relation to the rights of parents, adoptive parents and carers. These changes are just a stepping stone in terms of government proposals. Eligibility for maternity pay has increased from six months to nine months with an increase to twelve months being envisaged by the end of the next parliament. Other strategies under consideration are legislation to permit mothers to transfer part of the maternity pay and leave to a child’s father as well as consultation on the possibility of extending the right to flexible working to parents of older children. A
consultation paper has been issued by the DTI on the maternity leave strategy.
We intend to examine family friendly legislation in various headings.
Maternity
Pay
With effect from 1st April 2007 statutory maternity pay and maternity allowance have been extended from six months to nine months. Statutory maternity pay is only payable to women who are employees and have been in continuous employment by the same or associated employer (including TUPE transfers) for 26 weeks at the 15th week before the expected week of child birth. To all intents and purposes that means that any woman who is not pregnant at the date of joining the company or becomes pregnant within two weeks of joining a company is entitled to SMP. The first six weeks are payable at 90% of the average of the previous eight weeks earnings and thereafter for the next 33 weeks at a current rate of £112.75 per week. If average earnings are less than this, then it is 90% of average earnings that is payable.
Maternity allowance is payable at the flat rate of £112.75 per week and is, in principle, payable to mothers who do not qualify for statutory maternity pay. However given that the mother must have worked for at least 26 weeks during a 66 week period ending in the week of child birth, it will apply to comparatively few women, but at least offers some protection to those in casual work or those whose employment may have terminated.
Leave
The rules on statutory maternity pay are not the same as those relating to the entitlement to claim maternity leave. From 1st April 2007 all women in employment can claim maternity leave regardless of length of service. The first 26 weeks of maternity leave are still classified as ordinary maternity leave with the remaining 26 weeks being classified as additional maternity leave. Again this does not harmonise with the provision of statutory maternity pay and in our view the distinction between the two types of leave will probably be legislated away once statutory maternity pay is extended to 12 months.
There have been significant changes in other aspects of the maternity leave provisions. A woman seeking to return to work from maternity leave will now have to give her employer eight weeks notice of this intention. That is not to say that the employer cannot agree to accept less notice. Furthermore the sensible amendment has been made that a women will be allowed to work for up to ten days during her maternity leave as a way of reintegrating into the work place as well as there being provision for reasonable contact. In any event during the period of ordinary maternity leave employees must be treated in the same way as if they were at work which means company newsletters and job opportunities need to be made available. If a company advertises its internal vacancies on a company bulletin board, whether electronic or otherwise, it needs either to make sure the employee at home has access or is notified in other ways. The right to work for 10 days does not of course apply during the period of compulsory maternity leave in the two weeks after child birth.
Finally in relation to maternity, employers should not forget the obligation to undertake risk assessments that have regard to pregnancy if they employ women of child bearing age. Hazards may include certain industrial processes or chemicals, as well as hazards such as back strain or violence if that represents a normal risk of the job. If the risk can not be avoided by preventative action then the employee must be suspended on full pay.
An employee with a child born or expected to be born, or placed for adoption is entitled to take one or two weeks paternity leave. This can be taken at any time up to eight weeks from birth or longer if the child is premature. The employee must give his employer at least 15 weeks notice before the expected week of childbirth. The father does not even need to be male; it can be the partner of a same sex couple of the women giving birth.
The person claiming paternity leave is entitled to up to two weeks of statutory paternity pay which is fixed at the same rate as maternity pay i.e. currently £112.75 per week. It is also subject to the same conditions in respect of being employed by the same or associated employer for 26 weeks by the time the mother is 15 weeks from the expected date of birth.
The entitlement also exists for the partner of someone claiming adoption leave, of which more later.
Both mothers and fathers may be entitled to ask for unpaid parental leave. If the employee has completed one year’s continuous employment then he or she is entitled to ask for up to four weeks time off per year to care for the child until the 5th birthday. There is an overall maximum of 13 weeks. However, if a disability living allowance is payable in respect of the child, then up to 18 weeks can be taken to the child’s 18th birthday.
A person who has been continuously employed by the same or associated employer for 26 weeks at the point of which he or she is notified that s/he has been matched with a child is entitled to claim both ordinary and additional adoption leave. If those adopting are a couple, then only one can claim the full adoption leave. The other one is entitled to rights equivalent to paternity. The employee wanting to take adoption leave must have notified the adoption agency that s/he agrees to the placement and that within the next seven days give notice of intent to the employer. An employee can take the adoption leave on a date specified in that notice or adoption leave can start on:
- A specified number of days after placement
- On some other predetermined date
The employer is entitled to ask for written evidence of the adoption. This evidence must show the name and address of the agency, the name and date of birth of the child, the date of notification of matching and the date of expected placement.
At this point adoption leave mirrors the maternity leave entitlements. During the period of ordinary adoption leave all the terms and conditions of employment continue, but during additional adoption leave it is essentially the right to notice and redundancy, as well of course the right not to be unfairly dismissed. As with maternity leave the law provides for up to ten days being worked during the period of adoption leave together with maintaining contact.
An employee claiming adoption leave is entitled to statutory adoption pay provided there has been continuous employment with the same employer for 26 weeks, at the statutory maternity allowance of £112.75 per week. If earnings are lower then it is 90% of relevant earnings. The partner can claim paternity pay in just the same way as if they were the natural father.
Those with child care responsibility for a child under 6 (18 if with a disability living allowance) or those caring for adults who could be a spouse, partner, civil partner, relative may be able to ask for flexible working. The request should be dated and in writing and suggest the changes that are sought. The employer’s obligations are to give reasonable consideration to the request, but it is not obligatory to grant it. If the request is refused there has to be an internal right of appeal and then of course the employee may well be able to follow the normal grievance process.
Regardless of the statutory framework that exists, it would appear that in the 21st century economy this is successfully practiced by most employers and indeed 90% of all requests are approved.
All employees are entitled to a reasonable period of unpaid time off of work to deal with emergencies involving a dependent. There is no question of minimum service for this right to be exercised. Examples are providing help on a dependent falling ill, giving birth, being injured or assaulted, making provision for care, dealing with bereavement, disruption of care arrangements or incidents at school. The employer is entitled to be told as soon as possible when such a need arises and the guidance given by Government is that two days is likely to be the maximum. This entitlement is unpaid, but of course there is no reason not to allow an employee to take it from paid holiday leave.
Employment law, possibly more than any other area of law, is a reflection of the government’s social agenda. In some circumstances the government of the day will be following public opinion; in other circumstances it may be leading it. Further changes are likely, but we suspect will not be substantial. Clearly the extension of paid maternity leave to 12 months is pretty well inevitable and at some point we expect the distinction between additional and ordinary maternity leave and adoption leave to be abolished. At a time of full employment, these are rights which most employers are happy to accede to, since it ensures the largest potential pool of suitable employees being available. Many employers will, and have, agreed practices like these without needing a legislative imperative to make it happen. The resistance amongst employers is generally to the bureaucracy entailed in dealing with these issues and managing what has now become a complicated payroll with various allowances, income tax credits, student loan repayments etc. Possibly without computerised pay roll programs the maintenance of these rights would be extremely difficult.
Possibly for the first time in ten years there is a belief that there might be a change of government. Will this actually dictate a significant change in these rights? We think not. Whilst the pace of change may slow down, we think it inconceivable that a new Conservative administration would reverse a raft of rights that have now become firmly entrenched in the political middle ground.
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