The Legal 500

As part of the Government’s aim of helping employees achieve a better work/family care balance, further changes are to be made to the maternity leave regime.

Current position

The current regime is regulated by the Employment Act 2002 and supplementary regulations, including the Maternity and Parental Leave (etc) Regulations 1999 (as amended). In summary, it operates as follows:

New regime

The new maternity and parental leave regime will be governed by the Maternity and Parental Leave etc and the Paternity and Adoption Leave (Amendment) Regulations 2006 (the Regulations), which become effective on 1 October 2006. They will apply only in relation to those employees whose EWC begins on or after 1 April 2007, or with whom a child is expected to be placed for adoption on or after 1 April 2007.

There is no change to the OML entitlement or to the duration of AML (which both remain at six months). However, the AML eligibility threshold will be reduced; all employees who qualify for OML will also qualify for AML.

SMP will be payable on a daily basis, meaning that the commencement of maternity leave and the payment of SMP can be aligned. Currently, SMP can only be paid on a weekly basis, which generally results in maternity leave commencing before SMP can be paid. From April 2007 the SMP pay period will be increased to 39 weeks (ie nine months) for employees whose EWC is on or after 1 April 2007. It is anticipated that this will increase to a 12-month payment period by the end of next Parliament.

A maternity leaver who wishes to return earlier than the end of her AML or extend her maternity leave beyond the original return date notified will have to provide eight weeks' notice.

Reasonable contact

During the initial consultation process, the government proposed introducing an express statutory provision entitling employers to make reasonable contact with an employee on maternity leave. This was intended to provide statutory clarification of a right already enjoyed by employers. The current draft of the Regulations does not include this express statement, but instead clarifies that ‘reasonable contact from time to time between an employee and her employer which either party is entitled to make' will not end the maternity leave. The Regulations cite a discussion about an employee's return to work as an example of reasonable contact.

If the draft Regulations are not amended further, there will be no statutory definition of reasonable contact and, more importantly, no statutory obligation on the employee to respond to communications from the employer, whatever form they take. This could result in a one-way communication process. In practice, employers should be able to send internal newsletters, guidance notes, training manuals, minutes of departmental meetings, reports, journals and job vacancies without the maternity leaver construing this as harassment, sex discrimination or a breach of the implied term of trust and confidence. Indeed, during the consultation the government expressed the view that reasonable contact would allow an employer to ‘initiate contact... to discuss whether or not her planned date of return to work has changed or is likely to do so or to discuss any special arrangements to be made to ease her return to work'. The response to consultation document also suggests that reasonable contact will be appropriate to keep the employee abreast of developments in the workplace, and the government still proposes to issue guidance on the issue of reasonable contact. It may be advisable for employers to consider whether it is appropriate or necessary to establish the parameters of contact that will apply before an employee commences maternity leave. This could be incorporated into a formal maternity leave policy. This has the advantage that neither employer nor employee should be surprised by the extent, or lack, of contact.

Keep in Touch (KIT) days

Maternity leavers will be able to work for up to ten days during their statutory maternity leave period (regardless of the amount of time the employee elects to take) without ending the maternity leave and losing their SMP payments for that week. Any work carried out on any day will count towards the ten-day allowance. Work for these purposes is defined as any work done under the contract of employment, including training or any activity undertaken for the purpose of keeping in touch with the workplace.

Any such work that is carried out must be by agreement; there is no obligation on the employee to accept, nor any entitlement to be provided with, such work. She also has the right not to be subjected to a detriment or unfairly dismissed because she has undertaken, refused to undertake or considered whether or not to undertake such work. Where such work is undertaken, it does not have the effect of extending the maternity leave period. An employee may not carry out any work during the two-week compulsory maternity leave period.

In its response to consultation the government states that it would expect employers to pay employees for work done on KIT days. The Regulations do not, however, address this issue at all. The amount of pay is therefore to be a matter of agreement between employer and maternity leaver, to reflect the nature of the work undertaken. The agreement will need to set out very clearly how the contractual payment for that day will work alongside any SMP due. The government will issue further guidance on this issue and may also provide pro-forma forms or letters setting out the range of questions to be agreed between both parties. Some employers may take the view that the complexity and possible contentiousness of the rate of pay for a KIT is such that it may be most practical simply not to operate a KIT scheme at all.

Practical Issues

For a short period employers will have to operate a dual regime and must be careful to ensure that the correct regime is followed for each maternity leaver.

Employers can, in theory, continue to contact maternity leavers at any stage of maternity leave in relation to workplace issues, for example vacancies, redundancy exercises and plans for returning to work. However, it must be borne in mind that maternity leave is a protected period of leave from work. Such contact must therefore be reasonable, to avoid suggestions of breach of the implied term of trust and confidence or sex discrimination on the basis that other long-term absentees are not subjected to similar treatment. The employee is not obliged to respond and should suffer no repercussions for not doing so. Over-zealous managers should not expect maternity leavers to respond to e-mails, calls, etc, regarding day-to-day queries arising after the maternity leave commences. Some maternity leavers may be prepared to have regular contact of this type. However, depending on the nature of the maternity leaver's input, this could count as ‘work' and could therefore count towards the ten KIT days allocation. Any work over and above that entitlement will cause the maternity leaver to lose her SMP entitlement and trigger the end of her leave.