While we continue to wait for Jersey's draft law on parental leave, employers must still consider implementing policies on maternity and paternity leave before the draft appears – probably later this year – and it is enacted.

If we assume that proposals discussed in 2011 are implemented – albeit not until at least 2013 - then parents in Jersey would be on a par with those in our sister island, but have far fewer entitlements than if they were in the UK and much of Europe.

The main reason for this is that larger jurisdictions have had some form of such rights in place for many years and these have been extended over time.

Because the proposed statutory provisions cannot be regarded as more than the minimum, it is considered futile to introduce rights that will only need extending as soon as the law has been enacted. This is what has stalled the process.

Despite there being no law in place yet, Island employers of all sizes would be wise to consider having at least a policy on maternity leave in place now. Many large companies already have policies covering maternity and paternity, so it will be small and medium sized organisations that find it hardest to adapt to the introduction of these statutory rights.

In practice, they already have to deal with female employees falling pregnant on a caseby- case basis, which creates the potential for a dispute to arise.

To be able to plan sufficiently for the forthcoming absence, the employer must ask the expectant mother: the expected date of birth, the date when the employee wishes to cease working, whether they intend to return to work following the birth and, if so, the date when they would like to return to work. Asking her to complete a form with these details on at, say, the 5th month of the pregnancy would seem to be the most practical. If she is asked much earlier it is possible that the dates or her views may change by the birth.

The employer then needs to consider what steps it needs to take to ensure that it can continue to provide the same level of service, or that adequate cover will be in place to do the work of the employee, while she is away. This may mean asking other employees to do her work on a temporary basis, to work extra hours or possibly to take on another employee on a temporary basis.

What if the baby arrives early?

The employer needs to implement the plans it has made to cover the employee's work with immediate effect.

What if the baby arrives late?

If the employee wishes to work to a date later than she indicated then, provided there are no health issues, there is no reason why the employer should not agree. They may need to undertake a risk assessment of her job which gives specific consideration to her pregnancy.

When should paternity leave commence?

Employers should give some flexibility in the wording for the start date in their paternity policy. Many policies say that paternity leave will start on the day that the baby is born but in reality, this is not always the best time for the father to take the leave, for example if the arrival is earlier than expected or if there is a long labour, which may mean they need to use some of their leave before the baby is actually born. Often fathers would prefer to defer time off either until mother and baby are out of hospital, or until a later date when they would be more useful at home. If it makes no actual difference to the employer when the father takes his [x] days off, there is no reason for the policy to be so rigid in its application.

The policy might say, for example, "if the leave is not to be taken from when the baby is born, then the timing of such to be agreed with the employer but to be taken in any event within 8 weeks of the birth".

What if there are complications prior to, or following, the birth?

If complications occur, the mother (and father) may need to take annual leave at short notice or extended unpaid leave. And if child care arrangements, due to start when the leave ended, do not work out, further absence may be needed. Employers may wish to make provision for such circumstances when drafting a maternity or paternity policy for the first time.

If the law on parental leave includes the right to request flexible working, this would cover such a situation.

Does holiday leave entitlement continue to accrue during maternity leave?

One might assume that it does accrue in the same way as during a period of sickness absence, but until the law comes in, such is entirely at the employer's discretion. If holiday entitlement is not to accrue during the period of leave, it is worth specifically stating this so that there is no misunderstanding.

These are after potential provisions but these will be referred to in a later article once the draft law has appeared.

How will the situation differ in Jersey and Guernsey?

In her article in this month's Employment News, Emma Parr considers two examples based on the proposals for "basic rights" in Guernsey. In Jersey, the following would apply...

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.

Assuming that Jersey's law includes a qualifying period of 15 months as per the proposal, Alison would be entitled to a maximum of 8 weeks absence, of which only the 2 weeks following the birth would be paid. As this is such a short period, she is likely to want to have as much of this time after the birth rather than any before, and so employers should be mindful of any health and safety issues and undertake a risk assessment. The conclusion may be that the expectant mother should be advised to reduce her hours, or consider using some of her annual leave.

As 8 weeks is a short period for a mother to adjust, her employer also needs to be satisfied that she is not returning before she is well enough to do so. If a mother returns sooner than she should this is likely to result in her taking time off due to sickness after her return, or the quality of her work may be adversely affected.

Alison's employer would have to keep her job open for her and no changes to it should be made during her absence. If she wanted to take more than 8 weeks off, albeit unpaid, then her employer is not obliged to agree. It is entirely at their discretion but any agreement regarding additional time off needs to be carefully considered and set out in a letter to Alison so that there is no confusion. If she is unable to return to work at the end of the 8 week period, her employer need not keep the job open for her beyond this point.

Alison's husband or partner would be entitled to take up to 2 weeks of paternity leave, but this would be unpaid. Adopting a family friendly approach and also in line with the Civil Partnership (Jersey) Law 2012, this need not be the biological father of the baby.

Example B

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.

Brenda would be able to be absent for up to 18 weeks, but her employer would only have to pay her for the 2 weeks immediately after the birth. If she decided that she wanted to return to work earlier, she would be entitled to do so. Her employer would have to keep her job open for her and no changes to this should be made during her absence.

If Brenda wanted or needed to be absent for more than 18 weeks, even though she had worked for the employer for more than the proposed qualifying period of 15 months, any further absence would be entirely at the discretion of her employer and they need not keep her job open beyond this time. Any further absence would be unpaid.

Brenda's husband or partner would be entitled to take up to 2 weeks of paternity leave, but this would be unpaid, and this does not need to be the biological father of the baby.

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.