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The maternity and parental leave provisions of the Employment Relations Act 1999 are implemented by the Maternity and Parental Leave Regulations 1999. These Regulations came into force on 15 December 1999.
Old Provisions
Length of ordinary maternity leave
- all employees (regardless of length of service) are entitled to 14 weeks' ordinary maternity leave.
Length of extended maternity leave
- all employees who have been employed for 2 years at the beginning of the 11th week before the EWC have the right to extended maternity leave which entitles them to return to work at any time in the 29 weeks beginning with the week of the baby's birth.
- extended maternity leave ends not later than 29 weeks beginning with the week of the baby's birth, subject to possibility of postponement in certain circumstances.
Notice requirements
- notice of pregnancy must be given at least 21 days before leave begins (or as soon as reasonably practicable thereafter) giving the expected week of childbirth.
- if she qualifies for extended maternity leave, notice must be given (when giving notice of pregnancy) that she intends to return to work.
- notice of maternity leave must be given 21 days before the date on which she intends leave to start (or as soon as reasonably practicable thereafter).
- if she intends to return to work earlier than the normal expiry of her ordinary maternity leave period, she must give at least 7 days notice of her intended return date (21 days notice in relation to extended maternity leave).
Rights during ordinary maternity leave
- employee is covered by all the terms and conditions that would have applied had she not been absent, other than "remuneration" (not defined).
Rights during additional maternity leave
- if no contractual term or agreement to contrary, employee's contractual rights and responsibilities are suspended.
Holiday entitlement
- employee will continue to accrue holiday entitlement during ordinary maternity leave. Her entitlement to accrue during additional maternity leave will depend on the terms of her contract or any agreement reached with her employer.
- holiday entitlement is subject to her right to minimum 4 weeks' holiday under the Working Time Regulations which is unaffected by maternity leave
Pension rights
- employee's occupational pension rights must be maintained during ordinary maternity leave as part of her normal terms and conditions, regardless of whether she is receiving any maternity pay.
- during any period when woman is in receipt of contractual or statutory maternity pay, her employer must continue to make normal contributions to her pension. The woman, on the other hand, can make decreased contributions based on her reduced salary.
Protection from adverse treatment
- adverse treatment of a woman resulting from her absence on maternity leave is likely to be sex discrimination (McGuigan v. T G Baynes & Sons).
- dismissal of a woman for a pregnancy related illness that arises or continues during pregnancy or maternity leave is automatically sex discrimination (Brown v Rentokil Ltd.).
Unfair dismissal
- it is automatically unfair to dismiss a woman during ordinary maternity leave where the reason or principal reason is that she has given birth or any reason connected with her having given birth.
- it is automatically unfair to dismiss a woman after the end of her ordinary maternity leave where the reason or principal reason is that she took, or availed herself to the benefits of, maternity leave.
New Provisions
Length of ordinary maternity leave
- 18 weeks' ordinary maternity leave.
Length of extended maternity leave
- all employees who have been continuously employed for 1 year before the EWC are entitled to 29 weeks extended maternity leave (now called "additional maternity leave").
- additional maternity leave ends not later than 29 weeks beginning with the week of the baby's birth (no postponement).
Notice requirements
- this notice need not be given in writing
- no such requirement for additional maternity leave. The employer can ask (not earlier than 21 days before the end of ordinary maternity leave) whether she intends to return from additional maternity leave. The enquiry must be in writing, tell her how to work out when her leave ends and warn her that failure to respond to the inquiry will mean she loses the protection from detriment and dismissal under the Regulations.
- no change
- at least 21 days notice must be given in relation to early return from ordinary and additional maternity leave.
Rights during ordinary maternity leave
- "remuneration" defined as "sums payable to an employee by way of wages or salary".
Rights during additional maternity leave
- employer is bound by implied obligation of trust and confidence and by any terms and conditions of employment relating to termination by the employer, compensation in the event of redundancy, and discipline and grievance procedures. Employee is bound by implied obligation of good faith and any terms and conditions of her employment relating to termination by employee, the disclosure of confidential information, restrictive covenants, the acceptance of gifts or other benefits or her participation in any other business.
Holiday entitlement
- no change.
- any weeks when employee is on maternity (or paternity) leave and receives less than her (or his) normal pay will be disregarded when calculating entitlement to paid holiday under The Working Time Regulations.
Pension rights
- no change.
- no change
Protection from adverse treatment
- a woman is expressly protected from being subjected to a detriment because she is pregnant, has given birth or has been suspended on health and safety grounds relating to maternity. A woman on extended maternity leave will only be protected if she has complied with employer's request to confirm that she intends to return to work.
- a woman who is subjected to a detriment can complain to an employment tribunal which can award whatever compensation appears just and equitable.
Unfair dismissal
- this protection is extended to a dismissal during additional maternity leave as well as ordinary maternity leave.
- protection extended to dismissal at any time for taking or seeking to take ordinary or additional maternity leave (provided she has responded to the employer's request to confirm that she intends to return to work).
This note is intended to give a general overview of the Contracts (Rights of Third Parties) Act 1999 in a property context. If you require advice on the consequences of the new legislation in a specific situation, please contact Caroline Andresier, the property department's professional support lawyer, or your usual Macfarlanes' contact. Macfarlanes have also produced a client note on the extensive implications of the Act for the construction industry