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MATERNITY RIGHTS (Page 1)

UPDATE: 01 September 2008

The law:
there are a large number of statutes and regulations, some of which are contradictory, but the principal ones are:

Sex Discrimination Act 1975, s.6;
Social Security Contributions and Benefits Act 1992, ss.35 and 35A;
Social Security Contributions and Benefits Act 1992, Part XII (ss.164-171);
Employment Rights Act 1996, s.71; s.72; s.73; s.99; s.126;
Welfare Reform and Pensions Act 1999, s.53;
Employment Act 2002, s.17;
Work and Families Act 2006;

Statutory Maternity Pay (General) Regulations 1986 (SI 1986/1960);
Management of Health and Safety at Work Regulations 1999 (SI 1999/3242);
Maternity and Parental Leave etc Regulations 1999 (SI 1999/3312);
The Social Security (Maternity Allowance) (Earnings) Regulations 2000 (SI 2000/688);
Maternity and Parental Leave (Amendment) Regulations 2002 (SI 2002/2789);
Statutory Maternity Pay (General) (Amendment) Regulations 2005 (SI 2005/729);
Employment Equality (Sex Discrimination) Regulations 2005 (SI 2005/2467);
Maternity and Parental Leave etc and Paternity and Adoption Leave (Amendment) Regulations 2006 (SI 2006/2014) which are in force from 01 October 2006 and are fully effective from 01 April 2007.
Sex Discrimination Act 1975 (Amendment) Regulations 2008; in force 06 April/05 Oct 2008.
Maternity and Parental Leave etc. and the Paternity and Adoption Leave (Amendment) Regulations 2008.
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Maternity leave:

there are two forms of maternity leave being -

1. statutory maternity leave that consists of statutory rights awarded by Parliament; and

2. contractual maternity leave that consists of contractual rights which have been
agreed between the employee and the employer as expressed and implied in the
contract of employment. A pregnant or new mother employee can choose whichever is the
best of any contractual or statutory scheme (e.g. maybe the contractual version of ordinary
maternity leave followed by the statutory additional maternity leave followed by the
contractual equivalent of parental leave - but she cannot have both at the same time).

1. Statutory maternity leave:

the statutory maternity leave provisions take three forms:

(a) ordinary maternity leave of 26 weeks;

(b) additional maternity leave of a further 26 weeks. This means that statutory ordinary
maternity leave together with statutory additional maternity leave add up to a total of
52 weeks. Of these 52 weeks, mothers who qualify for statutory maternity pay can
claim this for the first 39 weeks of their maternity leave - the remaining 13 weeks are
unpaid. However, a new mother employee may find that her contract of employment
states that she is entitled to be paid her contractual pay during her maternity leave.

(c) compulsory maternity leave that consists of either a two-week or four-week compulsory
leave period that is paid that a new mother must take immediately after the birth of her
baby. A new mother employee need not take maternity leave other than these periods.

To find the information you want to know about, refer to the appropriate paragraphs. For example, paragraphs beginning with number 1 give information about general statutory maternity leave and some of these paragraphs are sub-divided into 1(a) for ordinary statutory maternity leave; 1(b) additional statutory maternity leave; and 1(c) for compulsory statutory maternity leave. For information about contractual maternity leave, follow paragraphs beginning with number 2. Note that information in some paragraphs is relevant both to number 1 (statutory maternity leave) and number 2 (contractual maternity leave), e.g. see 'mobility clause.'

Important note: because of changes in the law introduced by the government during April and July 2008 as a result of the decision by the European Court of Justice in Land Brandenburg v Sass (2005) IRLR 147 ECJ (see below) and a High Court case (Equal Opportunities Commission v Secretary of State for Trade and Industry (2007) EWHC 483 (see below), the judgment of which followed the decision in Sass (2005), there are effectively very little differences now between Ordinary and Additional Maternity Leave. For the changes see: Sex Discrimination Act 1975 (Amendment) Regulations 2008; and the Maternity and Parental Leave etc. and the Paternity and Adoption Leave (Amendment) Regulations 2008. These changes mean that a woman employee's rights during Additional Maternity Leave are increased to the same are those to which she is entitled during Ordinary Maternity Leave (except for the period of notice she must give if she intends to return to work early.)

Announcing these changes in the House of Lords, Baroness Vadera said:
'(The) amendments mean that employers will no longer be able to treat employees taking additional maternity leave less favourably than those on ordinary maternity leave in respect of employment benefits. The regulations clarify that the non-pay contractual benefits that women have during ordinary maternity leave are explicitly extended to additional maternity leave and that right applies to adopters taking additional adoption leave as well. They ensure legal clarity and consistency with the amended Sex Discrimination Act. The regulations will come into force in October this year… and will apply to parents where the expected week of childbirth or placement for adoption is on or after 5 October 2008. The Sex Discrimination Act amendment also applies to women whose expected week of confinement is 5 October 2008 onward.' (Lords Hansard text for 16 July 2008, Col.GC115).

The change in the law that gave effect to the new rules mean that for women whose expected week of childbirth begins on or after 05 October 2008 are already able to benefit. Note that Statutory Maternity Pay is still limited to 39 weeks despite the changes to the maternity leave periods although the government has expressed its intention to extend SMP to 52 weeks by 2010 thereby making it payable for the entire 52 weeks of maternity leave period.

For the time being, these pages will continue to state the pre-amendment differences between Ordinary and Additional Maternity Leave but indicating where changes have been made.

1(a). Ordinary maternity leave:
from day one of employment after 01 April 2007, a pregnant employee is entitled to 26 weeks' ordinary maternity leave (and 26 weeks' additional maternity leave) regardless of: - how long she has worked for her employer; how many hours she works per week; whether her employment is temporary or permanent; how many people are employed by her employer. An employee must fulfil six conditions to qualify for Statutory Maternity Pay for the 26-weeks' Ordinary Maternity Leave period (plus the 13 weeks' paid Additional Maternity Leave period) and these are:

" she must have worked for the employer for a continuous period of 26 weeks ending with the qualifying week; i.e. up to and into the 15th week before the expected week of childbirth. Part weeks count as full weeks;

" she must have become pregnant and have reached (or been confined before reaching) the start of the 11th week before the expected week of childbirth;

" she must have ceased working for the employer;

" she must have average weekly earnings in the eight weeks up to and including the qualifying week at least equal to the Lower Earnings Limit for Class 1 National Insurance contributions (for the tax year 07 April 2008/09 is £90 per week (for the tax year 06 April 2007/08 the rate is/was £87 per week);

" she must have given 28 days' notice to her employer of the date when she expects liability to pay Statutory Maternity Pay will begin or, if not reasonably practicable, such lesser notice as was reasonably practicable;

" she must have produced medical evidence of her pregnancy and of the expected week of childbirth: Reg. 22, Statutory Maternity Pay (General) Regulations 1986, SI 1986/1960 (the Statutory Maternity Pay Regulations); s.164(2), (4) and (5) Social Security Contributions and Benefits Act 1992.

1. Employee status: to qualify for ordinary maternity leave, a woman has to be an employee. This means that a woman who is self-employed is not entitled to ordinary maternity leave. Problems as to entitlement to maternity leave can occur when employers fail to correctly identify those in their workforces who legally constitute an employee, a worker, or a self-employed person. In very general terms, an 'employee' is a person whose employer:

* deducts tax and National Insurance from their pay;

* controls the way the person does their work in relation to when and how the person does it;

* provides all the equipment, services and often the premises in which the work is done.

Note: a woman who works for an employment business (colloquially known as an 'Agency') as a 'temp' can establish whether or not she is an employee because, under the Regulations which came into force on 06 April 2004, an employment business or an employment agency must give a work-seeker a detailed written contract stating, among other things, whether the person is working under a contract of service (i.e. employee status) or a contract for services (i.e. self-employed): Reg.14(2), Conduct of Employment Agencies and Employment Businesses Regulations 2003 - see Agency workers

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