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Family Friendly Policies - Employment Relations Act 1999
Rights to maternity and parental leave and rights for part-time workers are contained in the Employment Relations Act 1999, the Maternity and Parental Leave Regulations 1999 and the Part-time workers (Prevention of Less Favourable Treatment) Regulations 2000. New improved maternity, paternity and adoption rights and the right to apply for flexible working hours are contained within the Employment Act 2002 and apply from April 2003.
This leaflet explains the family friendly measures in the Acts and Regulations that apply from April 2003. It is meant as a guide to the law only and is by no means an exhaustive explanation of all the provisions. There are separate Thompsons' leaflets on trade union and individual rights and union recognition.
New rights for working mothers and mothers-to-be came into force on 6 April 2003. These apply where the expected week of birth is on or after that date. The provisions allow for three periods of maternity leave:
ordinary maternity leave of up to 26 weeks
additional maternity leave of up to 26 weeks from the date of childbirth
two weeks compulsory maternity leave.
Compulsory maternity leave
The two week compulsory maternity leave following childbirth does not change. It is a criminal offence for an employer to allow a woman to work during the two weeks compulsory leave period.
Ordinary maternity leave
All female employees are entitled to ordinary maternity leave of up to 26 weeks regardless of their length of service. During this period, the employee is entitled to receive all her normal contractual and related benefits, except wages or salary. She may be entitled to Statutory Maternity Pay (SMP) during this time depending on her contract and may also be entitled to additional contractual pay and benefits under her contract. During this period she will be bound by her normal contractual obligations, except the obligation to work.
The earliest a woman can start maternity leave is 11 weeks before her baby is due.
On return from ordinary maternity leave, she is entitled to her old job back on the same terms and conditions.
Additional maternity leave
Employees with 26 week's continuous service at the 15th week before the expected week of childbirth are entitled to additional maternity leave. This follows on from ordinary maternity leave and lasts for a period of 26 weeks.
During this period the employment contract continues, but the only contractual terms that the employee will benefit from will be the employers' implied duty of trust and confidence, and any terms relating to notice of termination, redundancy compensation, and disciplinary or grievance procedures.
Returning to work
An employee is entitled to return to her old job after additional maternity leave, or, if that is not reasonably practicable, to another job which is suitable for her and appropriate for her in the circumstances. The terms and conditions must be no less favourable than if she had not been absent, with seniority rights preserved as they were at the start of her additional maternity leave period.
The employer or employee can no longer postpone the date of return after additional maternity leave for up to 4 weeks. If, for example, an employee is too ill to return after her leave, then her maternity leave still finishes and the normal rules on sick leave apply.
Statutory Maternity Pay
To qualify for Statutory Maternity Pay (SMP) an employee must have 26 weeks service as at the 15th week before childbirth. SMP is paid at 90% of earnings for the first six weeks of maternity leave followed by £100 (or 90% of earnings if lower) for the remaining 20 weeks.
Notification of pregnancy
An employee taking maternity leave must give notice to her employer of her pregnancy, her expected week of childbirth and the date on which she expects her ordinary maternity leave to start. She must give this notice on or before the 15th week before childbirth, but can change her plans on giving 28 days notice.
A failure to comply with the notification requirements is unlikely to result in a loss of the job. Instead, any failure to give due notification may be treated as a disciplinary matter.
An employee wanting to return to work before the end of either her ordinary or additional maternity leave must give her employer 28 days notice.
A new right to take adoption leave has been introduced in relation to children matched or placed for adoption on or after 6 April 2003.
The provisions mirror the new maternity leave rights and allow for an adoptee to take 26 weeks ordinary adoption leave followed by 26 weeks additional adoption leave, providing the adoptee has 26 weeks' service as at the day when they are notified of the match.
Statutory adoption pay is paid at a flat rate of £100 (or 90% of earnings if lower) during the ordinary adoption leave period.
The new right to paternity leave applies where the expected week (or actual week) of childbirth (or adoption) is on or after 6 April 2003. It is available for biological fathers of the child, husbands or partners (whether or not the biological father) where they have 26 weeks service as at the 15th week before childbirth or adoption.
The right is to take either one or two consecutive weeks off work within 56 days of the date of birth (or placement).
Notice of the intention to take paternity leave is similar for ordinary maternity or adoption leave.
Statutory paternity pay is paid at £100 per week (or 90% of earnings if lower).