MT Expert - Legal: Making sense of maternity

Employers could be forgiven for being confused about the current laws on maternity and paternity leave.

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Last Updated: 24 Sep 2010

Until April 2010, female employees were entitled to six months ordinary maternity leave and six months additional maternity leave. Employees with 26 weeks' service at the relevant date were entitled to statutory maternity pay for a total of 39 weeks, six weeks paid at 90% of pay, and 33 weeks paid at a flat rate of £124.88 (or 90% of pay if lower). Eligible fathers were entitled to two weeks' leave paid at the same flat rate of £124.88.

However, under the Additional Paternity Leave Regulations 2010 introduced by the Labour government just three weeks before Parliament was dissolved for the general election, an eligible employee will be entitled to take a maximum of 26 weeks' additional paternity leave (‘APL’), in addition to the current entitlement of two weeks' leave, before the child's first birthday. In order to be eligible, the employee must be the child's father or the partner of the child's mother and have 26 weeks continuous' employment, ending with the 15th week before the expected week of childbirth, He must remain in continuous employment until the week before the first week of APL.

In addition, the child's mother must return to work having not exhausted her statutory maternity leave. This means that the mother and father would not be able to take maternity and paternity leave at the same time. The earliest a father/partner will be able to take APL will be 20 weeks from the date of birth of the child.  The minimum period of APL will be two weeks, and the maximum 26 weeks.   

The new rules apply in respect of babies due on or after 3 April 2011. This means that employees who are notifying employers of their or their partner's pregnancy now will be entitled to take advantage of the new rights from next April.

However, following the change in government, there is now some uncertainty as to whether the changes to paternity leave will be postponed or replaced.

Since the regulations were implemented, many employers have updated their policies in preparation for next April. These employers will no doubt be frustrated by government suggestions that the position is now being reviewed. Theresa May, Minister for Women and Equalities, has hinted that the regulations may be delayed or rewritten. In the lead up to the general election, the Conservatives and Liberal Democrat parties both put forward ideas about paternity leave, which provide some indication about how this area may develop.

The Conservatives stated that maternity leave should be more flexible, and that the first 14 weeks should apply to the mother. Parents should then decide how to use the remaining period. The increased flexibility would mean that parents could use the leave simultaneously.
Similarly, the Liberal Democrats stated that they aimed to introduce greater flexibility, and suggested a single system of parental leave, allowing parents to share the 12 months' leave, in a way that suits them best.

It will not be surprising if there is a delay or changes, perhaps along the lines set out above.  This uncertainty is unhelpful given the timescales: families and businesses need to make plans in respect of APL, and it seems, they may have to familiarise themselves with yet another new system and make further changes to policies.

Meanwhile, developments at European level may be a further cause of concern for UK employers. In February 2010 the European Commission proposed to amend the Pregnant Workers Directive (92/85/EEC) to increase the minimum period of paid maternity leave to 20 weeks at full pay and the compulsory maternity leave period to six weeks. Initially, the proposal was thought to have little impact on the UK, as it was proposed that Member States could put a cap on 'full pay' provided this was at least equal to statutory sick pay. UK maternity provision would already be more generous than this proposal.

However, the EU Women’s Rights Committee has since voted in favour of amendments to the proposals.  Specifically, these included an extension of paid maternity leave to 20 weeks and a proposal that full pay during maternity leave should mean 100% of a woman’s last monthly or average salary. These new proposals have led to outcry in the UK, with claims that the requirement for 20 weeks’ full maternity pay will cost the UK up to £2bn a year.  However, there is some way to go before these proposals become law. Employers may need to live with uncertainty in this area for some time to come.

Kate Hodgkiss is an employment partner at DLA Piper

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