UK: Delivering Change - Employment Law And Parental Leave

Last Updated: 16 November 1999

One of the most controversial areas of current employment law reform is in relation to maternity laws and equal opportunity issues. The Fairness at Work White Paper published in May 1998 proposed changes to maternity legislation and introduced the right to parental leave and time off for domestic incidents. The Employment Relations Bill implemented the White Paper proposals and received Royal Assent on 27th July 1999. Consultation is currently taking place on the proposed contents of the regulations which will implement the provisions. The Government intends that the regulations will be in force by 15th December 1999.

Current entitlements

Current maternity law in the UK is found in the Employment Rights Act 1996 (ERA) which provides for :-

  • A right to paid time off for ante-natal care regardless of service or hours of work.
  • Two weeks compulsory leave following the birth of a child.
  • Up to 14 weeks basic maternity leave for all women irrespective of hours or length of service.
  • For women who have 2 years or more continuous service by the eleventh week before the expected birth of their baby, a statutory right to return up to 29 weeks from the week in which their baby is actually born (on the giving of 21 days notice to the employer of the intended date of return). A woman who is only entitled to take 14 weeks maternity leave has in effect a contractual right to return as her contract subsists throughout her period of maternity leave.


Time for change

Key changes to maternity legislation proposed by the Employment Relations Act ("the Act") are :-

  • An extension of ordinary (basic) maternity leave period from 14 weeks to 18 weeks, to bring it into line with the length of the statutory maternity pay period.
  • A right to ‘additional’ maternity leave (the same as the current 29 week period) where an employee has one or more years service.
  • Clarification that the contract of employment will continue during all periods of statutory maternity leave.
  • A right not to be victimised on the grounds of pregnancy, childbirth or maternity.

As stated, one of the proposed changes is a ‘right to additional leave’ rather than a ‘right to return’ together with clarification that the contract of employment will subsist throughout the period of additional leave. Employers initially feared that the existence of the contract of employment would lead to employees being entitled to all contractual benefits throughout the additional maternity leave period. The Government has now confirmed in its consultation document that this will be limited to terms relating to trust and confidence only. If this remains the case, employers will not have the financial burden of continuing to provide all contractual benefits as originally proposed. Clearly of benefit to employees is that a woman will be regarded as employed during her additional period of leave rather than her status during this period being unclear as is currently the case.

Other changes contained in the Act which relate to maternity issues include provisions to safeguard the rights of part time workers. The Part-time Workers’ Directive should be implemented by 17 July 2000 and requires employers not to discriminate against part-timers and ensure that they have the same rights and benefits as full timers in respect of key benefits such as pensions and pay. The Act also introduces the concept of parental leave for employees with one or more years service. Current proposals provide for three months unpaid leave for men and women following the birth or adoption of a child at any time up to the fifth birthday of that child, with the same rights to return as someone on maternity leave. Whilst regulations will clarify how the right is to operate alongside maternity absence potentially an employee on maternity leave could extend her period of absence by separately exercising her rights under the parental leave provisions at the end of her maternity leave period. The Act also gives employees the right to a reasonable amount of leave to deal with incidents involving a dependant.

Perilous times

The reduction of the qualifying period for extended leave to one year and the introduction of other ‘family friendly’ rights places employers under an increased burden of responsibility more especially with statutory rights to leave being conferred on men as well as women. However, the employer who fails to meet his obligations in this regard or takes steps to try and avoid the new legislation, will do so at his peril and risk claims of constructive/unfair dismissal and sex discrimination. Whilst the exact scope of the changes and their impact will not be fully clear until the regulations have been issued, clearly ‘flexible working’ and ‘family friendly’ are buzz words that will become established practice in time. Employees are more aware of their rights and employers must respond to this and the proposed changes by ensuring that managers are fully trained in dealing with these and related issues and by establishing practices and procedures to ensure that legislation is properly implemented in the workplace.

Author: Sue Nickson, Partner and Head of National Employment Unit, Hammond Suddards

First appeared in the October 1999 issue of Research magazine.

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