Maternity leave

There are two main changes that employers need to bear in mind. The first is that, as of April 2007, maternity leave has extended to 52 weeks for all employees, regardless of length of service. The second is introduction of “keeping in touch” days.

This, of course, means employees who have only just started with a firm could go off on maternity leave for up to a year. In this situation, they may not receive Statutory Maternity Pay (SMP); however, as they will still need 26 weeks’ service by the end of the 15th week before the expected week of childbirth to qualify for the payment, ie the current requirement and the SMP requirements will not change in that respect.

The SMP period has increased to 39 weeks and can start on any day of the week, with the first six weeks paid at 90 per cent of wages.

Contractual entitlements
Contractual entitlements during maternity leave have not changed. The 52-week period is divided into two parts, known as ordinary maternity leave (OML) covering the first 26 weeks and additional maternity leave (AML) being the next 26 weeks. Maternity leave employees have different contractual rights according to which period of leave they find themselves in. For example, for the period of OML, employees are entitled to the terms and conditions as if they were not absent, with the exception of remuneration. Employees, therefore, will receive their full holiday entitlement during OML.

On the other hand, for the AML period limited contractual terms apply and employees are only entitled to the minimum holiday entitlement under the Working Time Regulations, which is four weeks of annual leave.

Maternity leave notification
Initial notification requirements by a pregnant employee to her employer remain the same. Once an employer receives the notification about the maternity leave, there is a requirement on the employer to confirm the end date for AML. The implication is that the employee will take the whole of the 52 weeks of maternity leave. If an employee wishes to return earlier than that, she will have to give her employer not less than eight weeks’ notice of the intended return date.

If an employee tries to return to work early without giving the proper notice, the employer can postpone the return date by up to eight weeks, but not beyond the end of the AML period.

“Keeping in touch” days
The 2007 regulations also introduced the new concept of 10 keeping in touch days when a woman, who is on maternity leave, may work for her employer. Work can be any work that is under her contract of employment and may include any training or activity undertaken with the purpose of keeping in touch with the workplace. Therefore, keeping in touch days could be used for CPD.

Keeping in touch with employees on maternity leave is something that employers either forget to do, or feel is too intrusive, but employers are expected to keep their employees informed of workplace changes, for example, by advising them of any departmental re-organisations, which may affect them and any vacancies (such as opportunities for promotion). If employers do not do this, there are real risks of sex discrimination or constructive dismissal claims.

There is also the possibility of working or training for up to 10 days without bringing the maternity leave period to an end. The 10 days will not extend the maternity leave period. There is no obligation on the employer or employee to offer or do the work or training.

SMP will continue during keeping in touch days. DTI guidance suggests that employers and employees should agree in advance pay for keeping in touch days. If the employee will carry out her normal work or training, presumably the employee would not agree to work for anything less than her normal wage. In this situation, the employer and employee can agree to pay her the normal wage, but SMP can be used as an offset.