New Rights for Employees during Additional Maternity Leave


[Maternity and Parental Leave etc. Regulations 2008 (reg 9) (reg 18A) (regs 19 + 20) and The Sex Discrimination Act 1975 (Amendment) Regulations 2008 (reg 3B)]

New regulations have been introduced this year which may affect the rights that employees have in relation to maternity leave. Employees have the right to take maternity leave from 11 weeks before the beginning of the week their baby is due to be born. Employees can take up to 52 weeks of maternity leave. The first 26 weeks of leave that can be taken are known as "Ordinary Maternity Leave", the second 26 weeks are known as "Additional Maternity Leave".

Terms and Conditions that do not relate to Pay

Currently, during Ordinary Maternity Leave, an employee has the right to benefit from the same terms and conditions under their contract of employment that do not relate to pay, which they would have had if they not been absent from work. For example, an employee who has the right to a company car, gym membership or health insurance while employed will usually still have access to all of these benefits while on Ordinary Maternity Leave. However, once the period of Additional Maternity Leave begins, an employee does not automatically have the right to all of these terms and conditions and, for example, may have to return the company car for the duration of her period of Additional Maternity Leave.

The new regulations mean that employees who expect to give birth on or after the 5th October 2008 will largely enjoy the same rights and obligations that they would usually have under their contracts of employment throughout the whole period of their Maternity Leave, and therefore these rights will continue throughout their Additional Maternity Leave, as well as their Ordinary Maternity Leave.

Terms and Conditions that relate to Pay

The new regulations do not change the position in relation to those terms and conditions of employment which relate to pay. The rule remains that, provided they meet certain statutory requirements, employees are entitled to up to 39 weeks of Statutory Maternity Pay. Therefore, an employee may be paid throughout their Ordinary Maternity Leave, but if an employee wishes to take Additional Maternity Leave, they may only be paid Statutory Maternity Pay during the first 13 weeks of their Additional Maternity Leave. If that employee wishes to take the full allowance of 26 weeks Additional Maternity Leave, they may not continue to receive pay during the remaining 13 weeks of their Additional Maternity Leave.

Returning to Work after Maternity Leave

The regulations also have not changed the rights of employees to return to work after their maternity absence. After the end of her Ordinary Maternity Leave, if an employee returns to work they have a right to return to same job which they were employed in before their absence. However, if an employee returns to work after their Additional Maternity Leave, if it is not reasonably practicable for them to return to the job they were employed in before their absence, their employer retains a right to provide them with a different job, provided it is suitable and appropriate in the circumstances.

However, the regulations have extended employee rights in relation to pension, seniority and other similar rights on their return to work. Therefore, on her return to work after Ordinary or Additional Maternity Leave, an employee should have the same pension and seniority rights as those rights she had before she left on maternity leave. If an employee returns after taking Additional Maternity Leave, her new rights to the same pension and seniority may therefore limit the ability of an employer to refuse to allow an employee to return to the position she held previously, depending on the circumstances and different positions that are available.

Protection from Detriment, Discrimination or Unfair Dismissal

The regulations have widened the right to protection from detriment or unfair dismissal so that employees are protected from unfair dismissal or other detriments because they took, or tried to take, Ordinary or Additional Maternity Leave. Therefore, if an employer does not allow the employee to have access to the benefits the employee should be entitled to while they are on Maternity Leave, or dismisses the employee unfairly because they are taking or trying to take Maternity Leave, that employer may be exposed to a potential claim by the employee for sex discrimination and unfair dismissal. One practical step that employers may want to take in order to avoid such claims would be to review their Maternity Leave Policies and ensure that employees are able to take the maternity leave they are entitled to and have access to largely the same benefits throughout their ordinary and additional maternity leave.

Health and Safety

Employers should also check their policies and health and safety risk assessments in relation to employees who are either pregnant or returning to work after having children. Special measures may need to be taken in relation to an employee who may, for example, be breastfeeding or have other special needs in relation to their pregnancy. If an employer does not provide a woman with facilities, goods or services on the grounds of her pregnancy, the regulations have detailed a new specific right for employees to make a claim against their employer for sex discrimination in certain circumstances.

Pension Rights during Maternity Leave

One question that the regulations have failed to deal with is whether pension contributions should be accrued and maintained throughout Ordinary and Additional Maternity Leave. Case law suggests that the benefit to a non-contributory occupational final salary pension scheme should be maintained and government guidance states that, if an employer contributes to an occupational pension scheme, these contributions should be continued by the employer throughout the time that the employee is on ordinary or additional maternity leave. Therefore, in the event that an employer does not make the same pension payments that they were making previously throughout the employee’s period of maternity leave, it may be possible for employees to make a claim for sex discrimination. However, because there is still not specific legislation on this point, it is still not certain whether such a claim would succeed.

This article was written by Emma Dickinson, Employment Team.

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