Changes to Maternity Rights
02/10/2008 Recent important changes to maternity rights are outlined below. Employers are advised to review their maternity policies (and adoption policies - since similar changes are to simultaneously come into force) accordingly. Please contact our Employment Team for assistance with this review. Basic facts OML - means Ordinary Maternity Leave which is a period of 26 weeks leave entitlement regardless of an employee's length of employment. AML - means Additional Maternity Leave which is a further period of 26 weeks beginning in the first day after the expiry of OML. All employees whose expected week of childbirth (EWC) started on or after 1 April 2007, and who have qualified for OML, will also qualify for AML, regardless of their length of service. EWC - means expected week of child birth. SMP - means statutory maternity pay which is dependant on (but not limited to) continuous period of employment and earnings. SMP begins to accrue from the day on which leave commences and is payable for up to 39 weeks. During OML, an employee has a statutory right to benefit from the terms and conditions which would have applied to her had she been at work, except for the terms providing for her remuneration i.e. wages or salary. Therefore, all contractual benefits (such as annual leave, pensions, health club membership, private use of a company car and so on) will continue during OML. Previously, during AML, an employee was entitled to the benefit of a much more limited range of terms and conditions than under OML. Developments Those women whose EWC is on or after 5 October 2008 are entitled to the same terms and conditions during AML as those currently enjoyed by women on OML. Please note that such employees will have the right to receive all non-monetary benefits under their contracts, and will continue to accrue annual leave at the rate specific in their contract, throughout the whole of their maternity leave period. Those employees will no longer be treated as having their contracts of employment effectively suspended over the period of additional maternity leave. Employees will also be protected from unfair dismissals relating to their taking (or ceasing to take) the benefits due to them during additional maternity leave. Employer's pension contributions Whilst an employee is on paid maternity leave the employer should maintain the employee's pension benefits. During unpaid maternity leave it is questionable whether pension contributions are treated as ‘remuneration' (in which case there is no obligation for an employer to continue providing the contributions) or ‘some other benefit of employment'. There is a difference in interpretation between the DTI and the BERR (Department for Business, Enterprise and Regulatory Reform) but European law seems to support the argument that pensions should be maintained during unpaid maternity leave periods. Suggested best practice until there is a definitive answer is for an employer to continue making such pension contributions. Our Employment Team can be contacted at any time to review and suggest changes to your employment policies to cater for the imminent changes in the law. For a competitive quote and free initial discussion please feel free to contact: Murray Wells
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