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Mothers' charter
Page 30
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New workplace maternity rights may demand more of employers but they have benefited from a more stable workforce.
Words: Jonathan Exten-Wright and Thomas Stansfield
Since April 2007 pregnant women have been entitled to take up to 52 weeks' maternity leave, divided into two distinct periods, regardless of length of service. The first is Ordinary Maternity Leave (OML). Here an employee is guaranteed 26 weeks' leave during which the contract of employment continues, affording the woman all her contractual benefits except (unless otherwise agreed) wages or salary.
The second period is Additional Maternity Leave (AML). This consists of a further 26 weeks' leave during which an employee is entitled to a more limited range of terms and conditions. The employer is only obliged to preserve the mutual trust and confidence between employee and employer, maintain disciplinary and grievance procedures, respect any terms of employment relating to notice of termination and any terms relating to contractual redundancy.
An employee must inform her employer by the end of her 15th week before the baby is due that she is pregnant and when she wants her maternity leave to start. The maternity leave period cannot start until the 11th week before the expected week of childbirth (EWC). The employee can decide how much maternity leave to take, up to the 52-week maximum, but the regulations require at least two weeks' compulsory maternity leave following the birth of the child, or four weeks if the woman works in a factory.
Conditions
An employee is entitled to Statutory Maternity Pay (SMP) if: • She has been continuously employed for at least 26 weeks at the end of the qualifying week; • Her normal weekly earnings are at least the lower earning limit for National Insurance purposes; • She has given at least 28 days' notice of the date she intends to claim SMP; • She has supplied a certificate (MAT B1) from a doctor; • She is still pregnant 11 weeks before the start of the EWC or has already given birth: • She has stopped work.
If these conditions are met, an employee is entitled to receive from her employer up to 39 weeks' SMP. For the first six weeks an employee will receive 90% of her normal weekly earnings; this is followed by a flat rate of £112.75 a week (1:117.16 from 6 April 2008) or, if less, 90% of her average weekly earnings for the remaining 33 weeks.
All pregnant employees are entitled to paid time off to attend antenatal appointments as long as these are made on the advice of a registered medical practitioner. An employer is allowed to ask for evidence of all antenatal appointments except the first. In the MPL Regulations of 2006, an employer has the option to make -reasonable contactwith the employee during maternity leave. Also, an employee can work up to 10 "keeping in touch" days, during which she can carry out work and be paid for this without losing her SMP. These days are optional for employer and employee alike.
When a mother returns to work she has the right to return to her former role on the same terms and conditions. However her exact rights vary. If she returns after OML (no more than 26 weeks' maternity leave), she is entitled to return to the same job in which she was employed before her absence, and be entitled to any improvements to her contract as if she had not been away, such as a pay rise for her grade or level. The only circumstance in which she may not return to work in her former role is where a genuine redundancy situation has arisen.
After AML (more than 26 weeks' maternity leave) the employee is still entitled to return to the same job and on the same conditions, but her rights differ if there have been changes to the workplace. If there is a reason why it is not reasonably practicable for her to return to her former role, for example a reorganisation, then the employee must be offered a similar job on the same terms and conditions.
Increased state intervention in the workplace gives women a better worklife balance. In 2005 only 20% of women changed their workplace once they had given birth, down from 41% in 2002.
• INFORMATION www.direct.gov.uk/en/employment/ emptoyeesiworkandfamilies www.herr.gov.uk/employment/ workandfamities/maternity-leavepay/index.htmt • Jonathan Exten-Wright is a partner and Thomas Stansfield is a trainee at international law firm DLA Piper