For avid readers of this newsletter, you may recall my earlier article which discussed proposals for Jersey's new maternity provisions. Well, it has come as no surprise that Guernsey is now likely to follow suit.
Guernsey States Policy Council recently considered proposals to introduce statutory maternity leave and Social Security Department benefits for expectant mothers and new parents. So what does this mean for employers and for those working women who may want to have children? Read on...
What is it "statutory maternity leave"?
Essentially, it is absence from work for a defined period; a legal entitlement for a new or expectant mother to have a certain amount of time off work leading up to, or following on, from the birth of their child.
What types of "leave" are available?
There are three types:
- Compulsory A period of 2 weeks leave which will commence immediately following the birth. It is recognised that this time is instrumental in protecting the health and well being of mother and child. The new mother is not to return to work during this period and an employer must respect this leave entitlement i.e. it is a compulsory period of absence.
- Basic A period of 12 weeks leave which may commence prior to the due date (although it does not have to), followed by the compulsory leave entitlement, and any remaining basic leave entitlement thereafter. The new mother is not required to utilise the full period of basic leave (12 weeks) but it should be made available to her by an employer if she so wishes.
- Enhanced A period of 26 weeks leave which will only be made available to expectant mothers who have worked for their current employer for at least 15 months prior to the due date (the qualifying period); those who do not satisfy the qualifying period are not entitled to any enhanced leave. This leave may commence prior to the due date, followed by the compulsory leave entitlement, and any remaining enhanced leave entitlement thereafter. As with "basic" leave, it is not necessary for the new mother to utilise the full period of enhanced leave (26 weeks) but again, it should be made available to her if she satisfies the qualifying period.
Example A. Alison has been working for her current employer for 12 months and wants to start her maternity leave 2 weeks before her due date.
Under the new proposals Alison could take 2 weeks basic leave before the due date, 2 weeks compulsory leave immediately following the birth, and then up to a further 8 weeks basic leave immediately following the compulsory leave period.
Alison could therefore take up to a maximum of 12 weeks basic statutory maternity leave.
Brenda has been working for her current employer for 24 months and satisfies the qualifying period; she is eligible for enhanced leave. Brenda also wants to start her maternity leave 2 weeks before her due date. Under the new proposals Brenda could take 2 weeks enhanced leave before the due date, 2 weeks compulsory leave immediately following the birth, plus an additional 22 weeks enhanced leave immediately following the compulsory leave period.
Brenda could therefore take up to a maximum of 26 weeks enhanced statutory maternity leave.
But what if a new mother does not want to take all this "leave", can she return to work early?
The short answer is "it depends on the leave taken".
There are many reasons why new mothers want to return to work early and these are mainly financial ones. Under the new proposals, although a new mother will be entitled to basic or enhanced leave she is under no obligation to utilise the full period; this is a personal decision for her and her family, but the full period of leave must at least be offered to her by the employer.
However, a new mother must utilise the full period of compulsory leave entitlement i.e. the first two weeks after birth; she must not return to work during this leave period and an employer must ensure that she is compliant. An employer will be in breach of the proposed laws if it requires her to return to work during the compulsory period.
Should her job be kept open?
The short answer is "yes"; it is proposed that a new mother returning to work after a period of leave (irrespective of whether it was compulsory, basic or enhanced) should be guaranteed the right to return to her previous role without any fear of job loss, a loss in seniority or social allowance.
How will the "leave" be funded?
Whilst the new proposals are a welcome relief to many and to some, long overdue, those against the proposals base their main argument on the financial cost to the island. The States propose that social security benefits should be used to fund a new or expectant mother's leave rather than any statutory pay funded by her employer. This is good news for businesses but not such good news for the individual tax payer; it is estimated that these benefits could burden the States with a cost of approximately £1.9 million per annum. This could see an increase in social insurance contributions of up to 0.2% overall.
To overcome any hardship to the individual taxpayer, some have suggested that the increased contributions be split equally between employer and employee. The Social Security Department has therefore been asked to report back on the proposed split which will form part of a wider consultation on social insurance contributions generally due to take place later this year.
When will these new statutory maternity provisions be enforceable?
Before it can implement the proposals into Guernsey law, existing laws will need to be amended and re-drafted. Whilst this should not prove an overly complex task, reality tells us that this won't happen any time soon!
Early indications are that 1 January 2014 is set to be the 'due date' for these news provisions. I shall be keeping a close eye on its progress and report back with any proposed changes to the time frame.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.