Family Friendly Rights From April 2007

The family friendly provisions of the Work and Families Act 2006 will have a significant practical impact from April.

Employees who are expecting or adopting babies on or after 1 April 2007 are entitled to the new maternity rights which include:

• 52 weeks maternity leave irrespective of their length of service;

• 39 weeks Statutory Maternity Pay (for most women); and

• up to 10 mutually agreed "Keeping in touch" working days during their maternity leave when they are entitled to be paid without prejudicing their statutory rights.

The right to request flexible working is to be extended to carers of adults from 6^th April 2007.

We will be sending out a series of lawnows over the next few weeks to help employers consolidate their knowledge of maternity related issues.

For further details on these changes please see below:

Full Article

The immediate purpose of the Work and Families Act 2006 is to extend statutory maternity pay, statutory adoption pay and maternity allowance to 39 weeks from 1^st April 2007 although longer term it provides for pay being extended to 52 weeks. It also extends the right to request flexible working to adults caring for spouses, parents or partners.

The Maternity and Parental Leave etc and the Paternity and Adoption Leave (Amendment) Regulations 2006 introduce other changes:

• Pregnant employees no longer need 26 weeks’ service to qualify for additional maternity leave as all women will be entitled to 52 weeks maternity leave irrespective of their length of service;

• If a woman wishes to return early from maternity leave she must give 8 weeks notice instead of 28

• Employees on maternity leave can agree to work up to 10 days during their maternity leave. "Reasonable contact" can also be maintained while the employee is on maternity leave;

• Employers with 5 employees or less will no longer be exempt from automatic unfair dismissal claims if they prevent employees from returning to the same or a similar job after additional maternity or adoption leave.

Although, these provisions came into force on 1 October 2006 they only apply to employees who are expecting or adopting babies on or after 1 April 2007.

All pregnant employees whose babies are due on or after 1^st April 2007 are entitled to take up to one year’s (52 weeks) maternity leave, regardless of length of service with the employer. Maternity leave is a single continuous period and consists of Ordinary Maternity Leave ("OML") and Additional Maternity Leave ("AML").

An employee’s contract of employment continues during OML and she must be treated in all respects as if she were not absent, both in terms of the benefits to which she is entitled and the obligations she owes. The only exception to this is that she is not statutorily entitled to receive salary.

AML takes over as soon as OML finishes. During AML the contract of employment does not continue in the same way and an employee will normally find that her terms and conditions of employment are more limited.

An employee taking AML is entitled, during that period, to the benefit of:

• her employer’s implied obligation to her of trust and confidence; and

• any terms and conditions of employment relating to

• notice of termination of the employment contract by her employer,
• compensation in the event of redundancy,
• disciplinary or grievance procedures.

An employee taking AML is bound during that period by:

• her implied obligation of good faith, and

• any terms and conditions of employment relating to

• notice of termination of the employment contract by her,
• the disclosure of confidential information,
• the acceptance of gifts or other benefits,
• the employee’s participation in any other business.

The extension of SMP to 39 weeks has created an intermediate stage to which benefits relate as some benefits depend on whether the maternity leave is paid. These include pension schemes and other wider benefits such as life insurance, private health insurance and private medical cover. Therefore, from 1^st April some benefits will be provided during the 26 weeks of OML, a narrower combination of benefits will be provided during the SMP paid part of AML (26–39 weeks) and a still narrower combination of benefits will be provided during the remaining AML (40-52 weeks).

The employer must notify the employee of the date her maternity leave will end. If the employee intends to return to work before the end of her full maternity leave (AML) she must give her employer at least 8 weeks notice of her date of return.

During the maternity leave period employers and employees may make reasonable contact with each other. The frequency and nature of the contact will depend on a number of factors, including the nature of the work and the employee’s job, any agreement that the employer and employee might have reached before maternity leave began and whether either party needs to communicate important information to the other, such as news of changes at the workplace that might affect the employee on her return. The contact between employer or employee can be made in any way that best suits them. It could be by telephone, email, letter, or the employee making a visit to the workplace.

Women (or adopters) are also able to work for up to 10 mutually agreed ‘keeping in touch’ days during their leave, without losing SMP (or Statutory Adoption Pay) for those days.

Work during maternity leave may only take place by agreement between both employer and employee. DTI guidance states that employees should agree the arrangements with their employer, including what they will be doing and how they will be paid.

An employee’s right to return from OML is a right to return to her old job on the same terms and conditions. If the woman is returning from AML, she is entitled to return to the same job on the same terms and conditions unless it is not reasonably practicable for her to return to that job. In that situation, the employee has a right to return to a suitable and appropriate job on the same terms and conditions.

The right to request flexible working and the "duty to consider" legislation is contained in the Employment Act 2002.

The right provides eligible employees who have children under six or disabled children under eighteen with the right to request a flexible working pattern. The Flexible Working (Eligibility, Complaints and Remedies) (Amendment) Regulations 2006 extend the right to flexible working for carers of adults from 6 April 2007. A "carer" will be an employee who is or expects to be caring for an adult who:

• is married to, or the partner of the employee;

• is a near relative of the employee; or

• falls into neither category but lives at the same address as the employee.

The "near relative" definition includes parents, parents-in-law, adult children, adopted adult children, siblings (including those who are in-laws), uncles, aunts, grandparents or step-relatives.

Although employers are not required to grant a request to work flexibly, a duty is placed on them to consider such requests seriously and employers can only refuse requests on certain business grounds. The employee must prepare a carefully considered application including details of when he or she would like the new flexible working pattern to start. The employer then follows a formal procedure to help ensure a request is considered seriously. The process seeks to facilitate discussion and is intended to enable both parties to have a clear understanding of each other’s point of view. Any changes agreed under the flexible working provisions are permanent changes to the employee’s terms and conditions of employment. There is no exemption for small employers.

This article was written for Law-Now, CMS Cameron McKenna's free online information service. To register for Law-Now, please go to www.law-now.com/law-now/mondaq

The original publication date for this article was 03/04/2007.