UK: Maternity Benefits And The New Maternity Rights: Q&As

Last Updated: 6 January 2009
Article by Catriona J. Aldridge

Employees who are due to give birth on or after 5 October 2008 have acquired a number of additional rights under the Maternity and Parental Leave etc and the Paternity and Adoption Leave (Amendment) Regulations 2008 (SI 2008/1966) (the "New Maternity Rules"). In summary, these additional rights mean that:

  • Employers should not discount additional maternity leave ("AML") when assessing seniority or non-contractual benefits based on length of service; and
  • With the exception of remuneration, all benefits available to a woman whilst on ordinary maternity leave ("OML") or should now also be applied during AML.

Below, we answer a series of common questions raised by employers in respect of their treatment of benefits for women on maternity leave. Reference to "maternity leave" refers to both OML and AML inclusive.

  1. Should employees continue to be paid car allowance whilst on maternity leave?

    There are varying views on this issue, with come commentators stating that payment of a car allowance is a non-cash benefit which should continue to be paid during maternity leave.

    It is our view that car allowance should be treated as remuneration and is therefore not payable to employees on maternity leave. A women's right to remuneration stops during maternity leave and is replaced with maternity pay.

    In support of this position, car allowances are often regarded as uplifts on salary and attract NICs, suggesting that they should be treated as wages, not as benefits. Also, when calculating normal weekly earnings for the sake of statutory maternity pay ("SMP"), any payment that is liable to NICs must be taken into account. Since the employee receives 90% of her normal weekly earnings during the first six weeks of maternity leave, she will in effect receive 90% of the car allowance as part of SMP and will therefore receive more SMP than an equivalent employee who has taken the car rather than the allowance. Maintaining the car allowance as a separate benefit would therefore lead to a degree of double-payment for the first six weeks.

  2. How should employers deal with salary sacrifice schemes for employees on maternity leave?

    The following will apply to all salary sacrifice schemes, including a scheme for the provision of Childcare Vouchers.

    A salary sacrifice scheme may also apply in a car lease situation. For example:

    • Option A: use of cheaper car
    • Option B: salary sacrifice and use of a more expensive car

    Legally, salary sacrifice benefits are contractual benefits and should therefore be paid throughout the duration of maternity leave.

    SMP cannot be sacrificed which means that the employer will need to meet the salary sacrifice cost for women receiving SMP only, throughout their maternity leave. Employers will also need to meet the salary sacrifice cost for women who have exhausted their entitlement to SMP (e.g. for weeks 40 - 52).

    Employers can deduct salary sacrifice payments from enhanced maternity pay provided this does not impact on the level of SMP. Deduction from enhanced maternity pay, however, may result in an inequitable outcome, with an employee who salary sacrifices receiving a smaller overall package than an employee who does not. Maternity policies should be drafted carefully to avoid this outcome.

  3. Should employee-paid benefits in respect of a Flexible Benefits Scheme continue to be paid during maternity leave?

    If the Flexible Benefits Scheme works on the basis of salary sacrifice benefits should be treated as discussed at question 2.

    If the Flexible Benefits Scheme works not on a salary sacrifice basis but by giving employees preferential rates (e.g. reduced gym membership rates where payment is made by the employee to the gym) this should not be affected by the employee being on maternity leave. The employee can choose to continue the payments but the employer is not obliged to pay the benefit on behalf of the employee.

    If employee and employer-paid benefits are linked (e.g. the employer will make a contribution of 0.2% of salary provided the employee makes a contribution of 0.1%) and the employee chooses to discontinue their contribution during maternity leave the employer is entitled to also stop their contribution. An example given by one of the participants of such a situation was with regard to healthcare.

  4. Must employers continue to pay Give as You Earn (GAYE) contributions on behalf of employees during the course of their maternity leave?

    Donations made under a GAYE scheme do not tend to be made as part of a salary sacrifice arrangement although they are tax allowable deductions. The effect of GAYE is that the employee chooses to make a donation of a certain amount but the amount deducted from their salary is less due to the tax benefit e.g. the employee chooses to make a donation of £5 per month but the amount deducted from their salary is £4. This is a cash benefit and there is therefore no requirement for the employer to continue to make the payment during maternity leave.

  5. Are employees entitled to receive commission in respect of the period when they are on maternity leave?

    No. Commission is considered remuneration for the purposes of the maternity legislation. A woman's right to remuneration stops during maternity leave.

  6. Do women on maternity leave accrue annual holiday during the whole period of maternity leave? Can the employer stipulate when this accrued leave must be taken by? Can the employer ask the employee to take their full accrued leave entitlement at the end of maternity leave?

    Women on maternity leave should accrue both statutory and contractual holiday throughout their maternity leave.

    An employer can stipulate when the accrued leave must be taken by and the employer can ask the employee to take their full accrued leave entitlement at the end of maternity leave.

    Where an employee takes 52 weeks maternity leave the employer should consider rolling over some or all of accrued annual leave into the next holiday year. There is currently no obligation to do so however.

  7. Are employees entitled to accrue public holidays for the period they are on maternity leave?

    This is a grey area. If an employer's policy previously allowed employees to accrue public holidays during OML, it would be consistent to extend this throughout additional maternity leave AML.

    Employers implementing such a policy could consider removing this entitlement altogether however. It is our view that employers are not required to allow employees to accrue public holidays during maternity leave, if the public holidays are additional to the minimum statutory entitlement. As explained at question 5 employees are entitled to accrue their minimum statutory entitlement throughout their maternity leave.

  8. Does an employee whose baby is born prematurely but had an Expected Week of Childbirth ("EWC") after 5 October 2008 fall under the New Maternity Rules?

    Yes. The New Maternity Rules refer to the EWC rather than the actual date of birth of the child. An employee is required to inform her employer of her EWC 15 weeks before the EWC. Employers should use this date when determining whether or not a woman falls under the New Maternity Rules.

Catriona Aldridge
Dundas & Wilson CS LLP
catriona.aldridge@dundas-wilson.com

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.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Authors
 
In association with
Related Video
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
 
Email Address
Company Name
Password
Confirm Password
Position
Mondaq Topics -- Select your Interests
 Accounting
 Anti-trust
 Commercial
 Compliance
 Consumer
 Criminal
 Employment
 Energy
 Environment
 Family
 Finance
 Government
 Healthcare
 Immigration
 Insolvency
 Insurance
 International
 IP
 Law Performance
 Law Practice
 Litigation
 Media & IT
 Privacy
 Real Estate
 Strategy
 Tax
 Technology
 Transport
 Wealth Mgt
Regions
Africa
Asia
Asia Pacific
Australasia
Canada
Caribbean
Europe
European Union
Latin America
Middle East
U.K.
United States
Worldwide Updates
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement

Mondaq.com (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of www.mondaq.com

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about Mondaq.com’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.

Disclaimer

Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.

Registration

Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to unsubscribe@mondaq.com with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.

Cookies

A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.

Links

This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.

Mail-A-Friend

If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.

Security

This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to webmaster@mondaq.com.

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to EditorialAdvisor@mondaq.com.

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at enquiries@mondaq.com.

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at problems@mondaq.com and we will use commercially reasonable efforts to determine and correct the problem promptly.