a normal term pregnancy and will obviously be later
than in fact the birth was, giving the opportunity to
take leave after the child comes home;
■statutory paternity pay is at the weekly rate of the
lesser of £117.18 (currently) or 90 per cent of normal
earnings;
■as in the case of SMP, employers can recover 92 per
cent of the NI payments. The small employers’ provi-
sion is as for SMP;
■employees can take paternity leave in addition to
unpaid parental leave of 13 weeks (see below).
Maternity allowance
Those who do not qualify for statutory maternity pay
may be able to get maternity allowance. The provisions
are broadly as follows:
Amount of benefit
A successful claimant will receive weekly the lesser of
£117.18 or 90 per cent of average earnings.
Payment period
Maternity allowance is paid for up to 39 weeks. The
earliest the period can start is the 11th week before the
EWC unless the child is born before this and the latest is
the Sunday after the child is born.
Service requirement
In order to qualify for maternity allowance, the claimant
must have worked as an employee and/or been self-
employed for at least 26 weeks in the 66 weeks immedi-
ately before the EWC. The weeks do not need to be
consecutive or for the same employer and a part-week of
work counts as a full week.
Earnings requirement
To qualify for maternity allowance the claimant’s aver-
age weekly earnings must be at least equal to the mat-
ernity allowance threshold which is currently £30 per
week. There are a number of ways of calculating average
earnings but, for example, the highest earnings for
13 weeks out of the 66 weeks referred to above may be
taken and divided by 13 to produce the average.
Pregnancy dismissals
It might be useful at this stage to consider the effect of
discrimination law in dismissal cases. A summary of the
position appears below.
Under s 99 of the Employment Rights Act 1996 it is
automatically unfair, so that no service requirement is
necessary to dismiss a woman for a reason related to her
pregnancy, maternity or maternity leave. It is also unlaw-
ful to take any action short of dismissal for any of those
reasons.
Women may also claim that dismissal in the above
circumstances is unlawful sex discrimination contrary
to the Sex Discrimination Act 1975, as amended by the
Employment Equality (Sex Discrimination) Regulations
2005 (SI 2005/2467), which makes discrimination while
a woman is pregnant or on maternity leave expressly
unlawful. There is thus no need to refer to the EC Equal
Treatment Directive and its case law, such as Webbv
EMO Air Cargo (UK) Ltd(1995), except perhaps where
there is a suggestion that UK law has not properly
implemented the directive. Such case law is beyond the
scope of this text.
Where possible, a claim should be made for sex dis-
crimination because a successful claim could lead to un-
capped compensation whereas unfair dismissal claims
are capped (currently at £63,000).
Constructive dismissals are also covered, as where the
woman is not dismissed by the employer but resigns
because of the unlawful conduct.Adoption leave – generally
Male and female employees are entitled to take adoption
leave. Where there is a joint adoption by married cou-
ples they will be able to choose who takes the adoption
leave. Where the adoption is by one of them only then
that person will be entitled to the adoption leave though
the other spouse will be entitled to paternity leave if the
criteria are met. It should be noted that in current law
couples in a long-term relationship but who are not
married cannot adopt. Only married couples or one per-
son in an unmarried relationship can adopt. As we have
seen, a married couple who adopt can choose which of
them takes adoption leave and which takes paternity
leave. The partner of a single person who adopts can
take only paternity leave.
The main general points on adoption leave and pay
appear in the tables at pp 472– 473.Unpaid parental leave
Sections 76 –78 of the ERA 1996 apply. These sections
together with the regulations provide for collective agree-
ments to be made with trade unions and workforce agree-
ments to be made with employees in regard to parental
leave. Nevertheless, employees retain their rights under
what is called the statutory fallback scheme unless the
collective or workforce scheme is more generous, inPart 4Business resources