Family friendly legislation

In January this year, the government published draft proposals to amend the Maternity and Adoption Leave Regulations and the Flexible Working Regulations as part of its stated aim to "improve the framework of support for working families".

The results of the consultation on Maternity and Adoption leave were published in June.   The results on flexible working are still awaited.   The regulations are intended to come into force on 1 October 2006 and for the changes to become effective so that they apply to parents of babies born, or expected to be born, on or after 1 April 2007, or children placed for adoption after that date. The changes to Flexible Working Regulations are expected to be effective from the same date.

Maternity and Parental Leave, etc and the Paternity and Adoption Leave (Amendment) Regulations 2006

Statutory maternity pay ("SMP") and adoption pay

From 1 April 2007 pregnant employees will be eligible for statutory maternity pay (SMP) for a total of 39 weeks rather than the current 26 weeks.   The adoption pay   period is similarly extended.   The government's stated aim is to increase the paid period of leave so that SMP, or adoption pay, is payable for the full year of leave entitlement and it is expected that this will happen before the end of the government's term in office.

Introduction of "keeping in touch days"

This is an important new development which will allow mothers to work for up to 10 days during their period of leave without losing their right to SMP, or adoption pay, for that week or ending their leave.   There will be flexibility on whether they are taken singly or as a block. However, if any work is undertaken on any day, even if only of a relatively small amount, that day will count towards the KIT day allowance of 10 days.

KIT days can be taken at any time, except during the first two weeks following the birth, this being the time which an employee must take off following the birth in any event.

The aim is to allow for the easing of the process of returning to work after an extended period of leave, and it is anticipated that this will be of most help towards the end of the leave period.

It is important to note that KIT days must only be taken by agreement with the employee.   Employers cannot force the employee to make use of them and will risk unfair dismissal and/or sex discrimination claims if they do.

Whether the employee is paid for her work, and how much, is not prescribed by the Regulations but is left to agreement between the employee and employer.   However, consideration should be given to what the implications would be for an employer who declined to pay an employee for work done on KIT days in terms of for example, equal pay and sex discrimination. Best practice must surely be to pay the employee at a rate equivalent to her usual remuneration, depending on the work done.   It may be difficult to persuade an employee to work otherwise.  

As now, the employer will still be able to reclaim SMP from the government, but will of course have to fund any additional remuneration paid to the employee for work undertaken on KIT days.  

Removal of qualifying period for AML

Currently, all employees get 26 weeks ordinary maternity leave (OML), regardless of their length of service.   To qualify for additional maternity leave (AML) they have to have six months' service by the 14 th week before the expected week of confinement (EWC).   This qualifying period for AML is to be removed so that all pregnant employees will be entitled to AML, regardless of their length of service.

Removal of small employer's exemption

The current position is that it is automatically unfair for an employer not to allow an employee to return to the same or similar job following a period of OML or AML.   This remains unchanged by regulations save that the small employer's exemption from this provision is to be removed. The exemption applied to employers with less than 5 employees.   Although exempted from a finding of automatic unfairness, if not permitted to return to the same or similar job following maternity leave a woman still had the right to bring claim for unfair dismissal and/or sex discrimination.   There was some confusion among some small employers as to their obligations and the exemption was therefore seen as counterproductive - hence the decision to remove it.

Good news for employers

Changes to notice periods

When the new regulations come into effect, if an employee wishes to return earlier than the end of AML or additional adoption leave she will have to give 8 weeks' notice instead of the current 28 days'.   The maximum time an employer may delay her return for failure to comply with that notice requirement will also be extended from 28 days to 8 weeks.   The stated aim is to allow employers to plan more effectively for returns to work.

Changes in calculation of SMP

New regulations will also make the calculation and administration of SMP and adoption pay simpler.   Currently, the maternity pay period lasts for 26 weeks, and starts on the Sunday following the day on which the employee ceases work (allowing first for any holiday taken at the start of leave).   Administration will be made easier by allowing SMP periods to start on any day of the week - to coincide with the day following the day on which the employee ceases work.   It will also be possible to calculate SMP on a daily basis to align such payments with a woman's usual pay pattern.

Reasonable contact

In response to calls from employers for greater clarity on the circumstances in which they may make contact with employees on leave, the draft regulations make provision for the employer to make "reasonable contact" with the employee while she is on maternity leave.   The meaning of "reasonable contact" is not set out in the regulations but will be dealt with in guidance to be issued in due course.

The Flexible Working (Eligibility, Complaints and Remedies) (Amendment) Regulations, 2006

The main change here is the proposal to extend the right to request flexible working to carers.

There has been much debate on how "carer" should be defined, however, everyone agreed that it should be a clear and straightforward definition.   Two issues were considered - the type of "caring" and the nature of the relationship between the employee and the adult in need of care that would be covered.   The regulations do not seek to define the type of caring that is to be covered by the right to request flexible working.   The assumption is that an employee requesting flexible working in order to care for an adult would have good reason to do so, and it would involve issues that were too personal if the regulations sought to define exactly the kind of care that could form the basis of a request for flexible working.

Instead, the proposal is that a "carer" would be defined as an employee who is or expects to be caring for an adult who:

•  is married to, or the partner or civil partner of the employee;

•  is a relative of the employee;

•  neither of the above, but lives at the same address as the employee.

The next question is how "relative" is to be defined.    This question forms the subject of part of the consultation.    Two options are proposed:

•  immediate relative - mother, father, adopter, guardian, parent-in-law, son, daughter, son or daughter in law (the government estimates that 1.1 million people would be covered by this definition).

•  near relative - would extend definition to brother, brother-in law, sister, sister- in-law, uncle, aunt or grandparent (the government estimates that this would cover 1.5 million).

In either case, any of these people will be covered if resident at the same address as the employee.

The results of the government's consultation of these issues are still awaited.

Written by Helen Essery, Solicitor at Newsome Vaughan LLP, Greyfriars House, Greyfriars Lane, Coventry, CV1 2GW

Telephone: 024 76 234227

Email: helene@n-v.co.uk