As part of our series of newsletters examining the changes brought about by the Employment Act 2002, this update will concentrate on:
- Extension of maternity leave from a maximum 40 weeks to 52 weeks
- Simplification of the maternity leave regime
- Introduction of paid paternity leave
- Introduction of adoption leave on similar lines to maternity leave.
Maternity Leave
The Act makes amendments to the length of maternity leave periods, the level of Statutory Maternity Pay and the notification procedures. It does not alter other rights and obligations, which include:
- Right to time off for ante natal care;
- Two week compulsory maternity leave after the birth;
- Right to suspend pregnant employees on health and safety grounds;
- Right to protection from detriment on the grounds of pregnancy or childbirth.
Commencement
- The new rights will apply to women whose Expected Week of Childbirth (EWC) begins on or after 6th April 2003.
- If the EWC starts on or after 6th April 2003 but the baby is born prematurely, before 6th April, the new rights will still apply.
- If the EWC is before 6th April 2003 but the baby is born late, after 6th April, the new rights will not apply.
Length of Leave
- Ordinary Maternity Leave (OML), which applies regardless of the length of employment, will be extended from 18 weeks to 26 weeks.
- A woman can commence OML at any time after the 11th week before the EWC.
- Additional Maternity Leave (AML) is available to employees who have completed 26 weeks' continuous employment by the 15th week before the EWC.
- AML is to be taken immediately after OML and is for a further 26 weeks.
- Therefore, provided that they have sufficient qualifying service, an employee is able to take 52 weeks maternity leave, an increase from the present 40 week maximum.
Notification
To take maternity leave, the employee must, by the 15th week before the EWC, notify her employer that:
- She is pregnant;
- The week that her baby is expected to be born (the EWC)
- When she wants her maternity leave to start. If she subsequently changes her mind about the date of commencement of maternity leave, the employee must give her employer 28 days notice, unless it is not reasonably practicable to do so.
Upon receipt of such notification the employer must respond within 28 days, identifying the date upon which the employee would be expected to return to work if she took her full entitlement to maternity leave. This will be either 26 or 52 weeks from the date the employee has notified that she intends to commence maternity leave.
The requirement for an employer to write to the employee during maternity leave to enquire whether she intends to return to work is removed. If the employee intends to take her full maternity leave entitlement and then return to work there is no need for any further notification.
If she intends to return to work before the end of the maternity leave period, the employee must give 28 days notice to her employer of her intention to return.
Statutory Maternity Pay (SMP)
Women whose average weekly earnings are above the Lower Earnings Level for National Insurance purposes will receive SMP for the 26 week OML period, providing that they have been employed for 26 weeks by the 15th week before the EWC.
- The first 6 weeks of OML will be paid at 90% of average weekly earnings.
- The remaining 20 weeks will be paid at £100 per week (an increase from £75 per week) or 90% of average weekly earnings if this is less than £100.
The £100 per week payment will apply to all women in receipt of SMP as at 6th April 2003, even if they do not qualify for the new maternity regime.
- Employers will be able to reclaim 92% of SMP payments made. If eligible for small employers' relief, the employer will be able to reclaim 100% plus an additional amount in respect of employer's NICs.
AML will continue to be unpaid.
Paternity Leave
Fathers of children born on or after 6th April 2003 will be entitled to take up to two weeks paternity leave if they satisfy the following criteria:
- Have or expect to have responsibility for the child's upbringing;
- Are the biological father of the child or the mother's husband or partner;
- Have completed 26 weeks continuous employment by the 15th week before the EWC.
Employees will be able to self certify to the first two criteria.
NB if the EWC is on or after 6th April 2003 but the child is born prematurely before 6th April 2003 paternity leave may still be taken. However SPP (see below) will be paid at £75 per week until 6th April 2003.
Duration
Paternity Leave can either be for one or two weeks, it is not possible to take 'odd days'.
Leave can be taken from:
- A specific date;
- The date the child is born; or
- A chosen number of days or weeks after the child is born.
In the second and third cases, this date will not be fixed until the child is born.
Leave can commence at any time on or after the date of birth but must be taken within 56 days of that date. In the case of premature births it must be taken within the period from the actual date of birth to 56 days after the expected date of birth.
Only one period of Paternity Leave can be taken per pregnancy.
Notification
The employee must notify his employer by the 15th week before the EWC that he intends to take paternity leave. The notification must include:
- The date of the EWC;
- Whether one or two weeks leave will be taken;
- When it is intended that the leave will commence.
The employee may change his mind on the commencement date provided he gives 28 days notice, if reasonably practicable to do so.
Statutory Paternity Pay (SPP)
Subject to having average weekly earnings above the Lower Earnings Limit for National Insurance purposes, employees who take Paternity Leave will be entitled to SPP for the one or two weeks leave taken.
This will be paid at the same level as SMP - £100 per week from 6th April 2003 or 90% of average weekly earnings if less than £100. It is also subject to the same rules on recovery as SMP, see above.
Miscellaneous
- The contract of employment will continue during periods of Paternity Leave, except for those terms relating to wages or salary.
- The employee is entitled to return to the same job following Paternity Leave.
- The employee is protected from unfair treatment or dismissal for taking or seeking to take Paternity Leave.
Adoption Leave
From 6th April 2003 employees who adopt a child will be eligible for adoption leave in a similar manner to maternity leave. Adoption leave is available to individuals who adopt or one member of a couple who adopt. NB the adopting couple can choose which one of them takes the Adoption Leave with the other one being eligible for Paternity Leave as detailed above. This can result in women being eligible for Paternity Leave.
Commencement
Adoption Leave will be available:
- Where an approved adoption agency notifies the adopter of a match with a child on or after 6th April 2003; or
- Where a match has previously been notified but the child is placed with the adopters on or after 6th April 2003.
Qualification
The employee must:
- Be newly matched with a child for adoption by an approved adoption agency;
- Have 26 weeks continuous employment by the week in which they are notified of the match.
Subject to meeting those qualifying criteria the employee will be eligible for 26 weeks Ordinary Adoption Leave (OAL) followed by 26 weeks Additional Adoption Leave (AAL). There is no additional qualification requirement for AAL.
OAL can commence from:
- The date of placement; or
- A fixed date up to 14 days before the expected date of placement.
Only one period of OAL and AAL may be taken per arrangement, regardless of the number of children placed.
If the placement ends during the Adoption Leave period, the adopter may continue on Adoption Leave for up to 8 weeks after the end of the placement.
Notification
The adopter must notify their employer of their intention to take Adoption Leave within 7 days of being notified of a match. Notification must include:
- When the child is expected to be placed with them; and
- When they want OAL to start.
The employee may change the commencement date, providing 28 days notice is given of the change, unless this is not reasonably practicable.
The employer must respond to that notification within 28 days, identifying the date upon which the Adoption Leave period will end and the employee will be expected to return to work.
In order to qualify for Statutory Adoption Pay (see below) the employee must produce a matching certificate from the adoption agency. This may also be required to prove eligibility for Adoption Leave.
If the employee intends to return to work at the end of the AAL period they do not need to give further notification. If they intend to return early they must give 28 days notice to their employer.
Statutory Adoption Pay (SAP)
Eligibility of SAP is determined in much the same way as SMP. It is paid for the 26 weeks of OAL at the same level as SMP - £100 per week from 6th April 2003 or 90% of average weekly earnings if less than £100.
Miscellaneous
- Employees who take Adoption Leave are protected by many of the same rights as those taking Maternity Leave, such as the right to return to the same or similar job and protection from detriment and dismissal.
- The employee continues to benefit from all normal terms and conditions of employment during OAL, except those in relation to wages or salary.
- During AAL the contract of employment continues and some contractual obligations and benefits will remain in force ie the right to notice of termination.
|
