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10 Jun 2014


When you hear the patter of tiny feet….

The legal implications of pregnancy and parenthood

All businesses must be prepared for staff turnover, for example, when certain members of staff retire or move on. Even planned absences can leave employers with huge skills gaps to fill. Maternity leave absences are often less predictable and provide employers with less time to plan suitable cover.

In order to enjoy maternity leave, the employee must generally notify her employer of her pregnancy; the expected week of childbirth (“EWC”);and the date on which she intends her ordinary maternity leave to start no later than the 15th week before her EWC or, if that is not reasonably practicable, as soon as is practicable, thereafter.

In practice, an employer may receive relatively little notice of maternity absence if the employee notifies her employer either late in the day or in the event of premature birth, or the employee simply not being aware of her pregnancy.

Key maternity rights include:-

1.  26 weeks’ ordinary maternity leave and 26 weeks’ additional maternity leave;

2.  Maternity pay payable for up to 39 weeks. Employees are entitled to 6 weeks at 90% of their average weekly earnings and a further 33 weeks at the standard statutory maternity pay rate, currently £135.45. While much of statutory maternity pay is refundable from social security contributions, there may be short term cash flow implications;

3.  Employers have an increased duty to ensure that the employee’s working environment is suitable. Employers should implement a health and safety audit and, if any issues arise, consider either the redeployment of the employee or, in extreme cases where an employee cannot be redeployed, the suspension of the employee on full pay.

Although employees’ contractual notice obligations to their employer continue to apply during maternity leave, many businesses report being on tenterhooks about whether a key employee will return after maternity absence as, despite the best intention of an employee to return, having a child may mean this is not realistic 6-12 months down the line.

Adoptive parents are treated in law in a near identical way as biological parents. The key difference is that there is a 26 week qualifying period of employment which must end on the date that an adoptive match is made. A further obvious difference is that one parent will have to decide to be designated as the “adopter” who is entitled to exercise the full 52 weeks’ leave.

Paternity leave at present allows for the non-child bearing parent of a couple to take leave after the birth of their child. The parent does not have to be the biological parent, merely a person responsible for the upbringing of the child. Currently, parental leave allows for a period of either 1 whole week or 2 consecutive weeks off within the first 56 days after the birth or adoptive placement, provided that the employee has been in employment for 26 weeks prior to the 14th week before the birth.

To complicate matters further, paternity leave can now be extended up to a maximum of 26 weeks provided this is taken between the 20th and 52nd week after the birth. Paternity leave can give rise to statutory paternity pay equivalent to the basic rate of statutory maternity pay, albeit only when the mother has ceased to claim SMP. In practice, this means 19 weeks of basic rate SMP is transferable normally to the father. Such leave can only be taken in a block and again, there are notice requirements to be followed.

The Government now proposes new changes to the maternity and paternity regimes. The Government has announced that parents will be able to share maternity leave in a fully flexible manner, to include, taking it in turns to request time off during the relevant period.

The current proposals are that the 52 weeks’ maternity leave (39 weeks) will remain in place as the default position for all employed women, as will the 2 week period of compulsory maternity leave, which applies from the day of the child’s birth. However, the new system will allow parents to share between them up to 50 weeks’ of leave and 37 weeks’ of pay (that is everything other than the compulsory period).

A female employee will now be able to allocate how much of her maternity leave she wishes to take and how much she wishes to share. The shared leave can be taken either consecutively or concurrently, as long as the total time taken does not exceed what is currently available to the couple. A woman will be able to specify in advance that she intends to end her maternity leave and that she wishes for her remaining leave and pay to become available as flexible leave and pay to her partner. Parents will be able to choose to take leave concurrently and decide how much leave each will take. This can include taking small blocks of leave, although the leave must be taken in a minimum of 1 week blocks. For example, this will allow a father to take a period of leave when his baby is born and a further period later on.

The Government has said that administrative arrangements will be “a light as touch as possible”. Parents will have the right to discuss how they wish to share the available leave and will each notify their employer of their individual entitlement. It will be up to the employee to propose the pattern of leave that they wish to take and then to discuss this with their individual employer.

Employers will not be obliged to agree to the flexible parental leave pattern proposed by employees. Parents wishing to take leave flexibly should discuss their plans informally with their separate employers as early as possible. The default position, where agreement cannot be reached, will be for a parent’s paid leave to be taken in one continuous block, to start on a date of their choice. The Government anticipates that in most cases employers and employees will come to a mutually beneficial arrangement.

Many employers will be fearful of these proposed new arrangements. Employers always have to consider whether the decisions they make could be either directly or indirectly discriminatory on the basis of gender. Employers who refuse flexible maternity leave requests will be fearful of the employees’ scope to challenge these decisions at Employment Tribunal.

The Government hopes that good employers will encourage openness and communication and come to mutually beneficial arrangements. Employers will have to give very careful consideration to their maternity and paternity policies and ensure they have clear concise policies and consistent implementation to ensure that they do not fall foul of a claim for unlawful discrimination.

Many employees still see the exercise of parental and maternity rights as an insurmountable hurdle to their future career aspirations. Employers who can demonstrate this not to be the case can be confident that their reputation with their employees will be enhanced, enabling them to recruit the most talented people to their business. Equally, many employers will now fear flexible leave arrangements due to their concerns of how to balance the skills needs of their business while an employee is away, against potential legal obligations if they cannot reach agreement with their employees.

The Government has indicated that there will be further consultation regarding the implementation of these arrangements during 2013.

HardingEvans can help guide you through the complex area of maternity and paternity rights to ensure difficult issues are dealt with properly to minimise the scope for costly and disruptive disputes.

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