The proposed terms of Jersey's new maternity provisions are causing quite a stir across the water. Jersey, like Guernsey, currently has no requirement for employers to offer paid maternity leave.
Employers in both islands either deal with maternity provisions on a case by case basis, or have their own policy. Such policies might be in line with that offered by parent or group companies in other countries. Many employers however offer nothing at all.
[The proposals in Jersey are for women who have worked for an employer for 15 months to be entitled to 18 weeks off work when they have a baby. Just two of those weeks would be paid.]
[Those who have worked for an employer for less than 15 months would be entitled to two weeks paid leave, and 6 weeks unpaid.]
The UK position, by comparison, is 26 weeks paid leave, and 26 weeks unpaid.
The first side of the argument on maternity legislation will be those who seek to protect employers against the costs associated with having to pay staff who are not at work, and keeping vacancies open for staff on maternity leave. Such arguments will often come from employers associations.
Pulling the other way is the broader social argument that women have a right to have children, and the law should go some way towards protecting that right by ensuring they can afford to take the necessary time off to have children, and can return to their jobs after childbirth without having suffered a detriment.
The first question of whether there should be any legislation at all has been answered by the states of Jersey in the affirmative, but it would seem that the impact of that decision has been mitigated by significantly reducing the entitlement from that provided in the UK.
The question now under discussion in Jersey is whether this represents a happy medium, a step in the right direction, or the setting of a dangerous low precedent.
The step in the right direction argument seems appealing, but in practice matters of employment law tend to be subject to a more complex set of influences than would support this argument.
It is not as simple as those who are currently on less favourable maternity conditions gain benefits, while those who are on more favourable conditions will be unaffected. This argument suggests that the law does no more than provide a longstop protection.
Employers think commercially. Maternity leave and associated provisions are an expense. Will taking the moral high ground outweigh the expense?
The true benefit of making generous maternity provisions that encourage women to have children are broad and social, and cannot be expected to weigh heavily on the minds of employers.
There is a risk that over time there will be a draw towards the legal minimum. Thinking commercially, there is a strong possibility that we will over time see more employers adopting the legal minimum, and those who otherwise would have been on more favourable terms and conditions will suffer.
If the legal standards proposed aren't strong enough to have the desired social effect, then introducing them at all could be counterproductive.
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