UK: Draft Regulations Issued for Consultation on New Family-Friendly Rights

Last Updated: 27 May 2002
The Government has published draft regulations implementing the new family-friendly rights regime. Key features of the new measures, which will come into force in April 2003, include:

  • extension of ordinary maternity leave from 18 weeks to 26 weeks, with additional maternity leave of 26 weeks, giving most mothers up to one year off in total.

  • a new right to 2 weeks’ paid paternity leave following a child’s birth or placement for adoption. Statutory Paternity Pay will be at the same standard rate as Statutory Maternity Pay - £100 per week (or 90% of average weekly earnings if this is less) from April 2003.

  • a new right to 26 weeks’ paid adoption leave followed by a further 26 weeks’ additional adoption leave, giving one adoptive parent the same length of leave as mothers on maternity leave. Statutory Adoption Pay will be at the same standard rate as Statutory Maternity Pay - £100 per week (or 90% of average weekly earnings if this is less) from April 2003.

  • increased notification periods and simplified rules governing maternity rights which will be mirrored for the new paternity and adoption rights.
The draft regulations are subject to a consultation period ending on 19 July 2002. The Government states that it does not envisage any substantive changes to the draft regulations, but does welcome technical comments, and is also seeking views on a number of outstanding policy issues as follows:

  • Paternity leave of 2 weeks will normally have to be taken within 56 days after the child's birth or adoption. Where the child is born prematurely, the child and mother may remain in hospital for a period and therefore the Government is proposing to allow the father a longer period of time to take his leave, until 2 months from the original expected week of childbirth ('EWC') if that is later than the date of birth. (The regulations as drafted appear actually to prevent the father from taking his leave after the birth but before the EWC in this scenario, but hopefully this drafting glitch will be remedied during the consultation process.)

  • The draft regulations provide that the paternity leave entitlement is to either one whole week or one whole fortnight. The Government is seeking views on amending this so that a father can take two non-consecutive weeks.

  • In the event of the child's death or cancellation of the adoption, it is proposed that paternity leave and pay would remain available, but that adoption leave and pay would end 8 weeks from the date on which the adopter is notified that the adoption will not go ahead. Views are sought as to whether this is an appropriate length of time.

  • The Government is proposing to increase the notification period for parents taking parental leave from 21 days to 28 days (for consistency with the other leave rights), save with regard to parents of disabled children.

  • The draft regulations provide that paternity leave will be available to someone who has or expects to have responsibility for the upbringing of the child and who is either the biological father or married to or the "partner" of the child's mother/adopter. "Partner" means a person (whether of different or the same sex) who lives with the mother or adopter in an enduring relationship but is not a blood relative. Views are sought on this definition.

  • There is a proposal that, where an employee takes lengthy consecutive periods of leave ending with a period of ordinary maternity leave, the usual right after ordinary maternity leave (to return to the same job) will be varied, so that the employer need only provide the same job if it is reasonably practicable and, if not, the right will be to return to a suitable and appropriate alternative job (as applies when an employee returns after additional maternity leave).

  • It is proposed that statutory paternity and adoption pay will continue to be paid during and after any period of imprisonment. (This would contrast with the situation for statutory maternity pay, where the liability to pay ceases on the employee being imprisoned and on release she has to claim Maternity Allowance instead.)

The Government has also produced draft model documents for employees to use when notifying employers of their entitlement to paternity and adoption leave and for employers to use to respond to notifications of employees' intention to take leave.

For further details and copies of the draft regulations and model documents, click here.

© Herbert Smith 2002

The content of this article does not constitute legal advice and should not be relied on as such. Specific advice should be sought about your specific circumstances.

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