Keenan and Riches’BUSINESS LAW

Part 4Business resources

472

The Maternity and Parental Leave etc. and the Paternity

and Adoption Leave (Amendment) Regulations 2006 (SI

2006/2014) apply. They came into force on 1 October

2006. They follow on from the changes to statutory
      maternity and adoption leave sanctioned by the Work
      and Families Act 2006 which received the Royal Assent
      on 21 June 2006.
      Who do the changes affect?
      They have effect in relation to an employee whose
      expected week of childbirth is on or after 1 April 2007
      and an employee whose child is expected to be placed
      with the employee for adoption by that date, or, in the
      case of an overseas adoption, an adopter whose child
      enters Great Britain on or after that date.
      What are the changes?
      Regulations 5 to 7 remove the additional length of
      service required to qualify for additional maternity
      (or adoption) leave (AML). An employee who qualifies
      for ordinary maternity (or adoption) leave (no length of
      service requirement) will qualify also for additional
      maternity (or adoption) leave. Previously, the right to
      AML was available only to employees who had been
      employed for 26 weeks.
      Statutory maternity and adoption leave entitlement
      for all employees regardless of length of service is
      12 months.

Notice to the employer

Regulation 8 extends the period of notice which an

employee is required to give the employer of the

intention to return to work earlier than the end of AML

from 28 days to eight weeks. If the employee fails to

give this notice the employer can postpone return for

up to eight weeks. The same extension applies to

return from adoption leave (reg 15).

Keeping in touch

Regulation 9 enables an employee on maternity leave

to agree with the employer to work (which includes

training) for up to ten days during the maternity leave

period without bringing the period to an end. These

are referred to as ‘keeping in touch’ days.

Removal of small employers’ exemption

Regulations 11 and 17 remove the small employers’

exemption in order to clarify that the employee

has the right to return to the same or similar job

regardless of the size of the organisation. If the

employee is prevented from doing so in these

circumstances a dismissal will be automatically

unfair. Previously this protection did not apply

where the total number of employees employed by

the employer (and associated employers, e.g. group

companies) did not exceed five.

Statutory maternity and adoption leave

she must also be paid. Except for the first appointment,
the employer can ask for proof of the appointment
in the form, for example, of an appointment card. An
employer who, acting unreasonably, does not give the
employee these rights can be taken to a tribunal by the
employee but this must normally be during the three
months following the employer’s refusal. Compensation
may be given to the employee, both where the employer
has failed to give time off and also where he has given
time off but has failed to pay the employee. In either case
the compensation will be the amount of pay to which
she would have been entitled if time off with pay had
been given as the law requires. All female employees are
entitled to this time off and it does not make any differ-
ence how many hours they work each week; there is no
service requirement.

Maternity leave and pay

This rather complex area of employment law can per-
haps best be set out in table form – see above.

Compulsory maternity leave

This leave is provided for by s 72 of the ERA 1996. The

employer of a woman is prohibited from allowing her

to return to work during the two weeks from the day

on which the child is born. An employer who con-

travenes this requirement commits a criminal offence

and is liable to a fine currently not exceeding £500. It is

accepted that the woman will be most unlikely to want

to return to work. The provision is basically designed to

prevent the employer from pressurising her to do so.

Statutory Maternity Pay administration

Employers can recover 92 per cent of the amount paid

out by way of Statutory Maternity Pay (SMP) and small

employers (broadly those whose national insurance con-

tributions payments for the qualifying tax year do not

exceed £45,000) can recover 100 per cent plus an addi-

tional 4.5 per cent of each payment of SMP which is

designed to recoup the NI contributions payable on such

payments.