Keenan and Riches’BUSINESS LAW

Chapter 16Employing labour

Paternity leave

Male and female employees have a right to be away from
work on paidpaternity leave. Most of the provisions
outlined in the table above do not apply to paternity
leave except as indicated in the notes. The qualifying
conditions are set out below.
The right is available to employees who:

■have continuous service with the employer of 26 weeks
by the end of the 15th week before the expected week
of confinement (EWC);

■have or expect to have responsibility for bringing up

the child;

■are either the biological father of the child or are mar-

ried to or are the partner of the child’s mother;

■leave is for two weeks and, whether taken in single

weeks or a block of two consecutive weeks, it must be

taken within a period of 56 days from the child’s birth

or the first day of the EWC. The second alternative is

to deal with a very premature birth where the child

might be kept in hospital for more than 56 days after

the birth. The EWC will of course have been set to fit

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Maternity payments

The following statutory instrument is a consequence of

provisions in the Work and Families Act 2006. It applies

to women according to an expected week of childbirth

and not the date on which the baby is born. The

Statutory Maternity Pay, Social Security (Maternity

Allowance) and Social Security (Overlapping Benefits)

(Amendment) Regulations 2006 (SI 2006/2379)

introduce the following provisions for women with an

expected week of childbirth on or after 1 April 2008.

Length of maternity pay

This is extended to a maximum of 39 consecutive

weeks. The pay for the first six weeks is 90% of

average weekly earnings and then the standard flat

weekly rate (currently £117.18) for the remaining period

of 33 weeks or 90 per cent of average earnings,

whichever is the less.

Start of maternity pay

Maternity pay can begin on any day of the week as

specified by the employee in the notification given to

her employer as to when she wishes to finish work.

This allows statutory maternity pay to align with the

commencement of the woman’s maternity leave in all

cases. A pay week is a period of seven consecutive

days.

Weekly rate of statutory maternity pay may be divided

Statutory maternity pay can be divided by seven to

enable employers at their discretion to align weekly

maternity pay with the pay practice in the job. Thus

if an employer commences pay calculation from, say,

Wednesday then the woman’s maternity pay can be

aligned with this as the commencement of her first

seven-day period of pay. This does not mean that a

woman can have one day’s pay. It is not like statutory

sick pay where an employee can be entitled to one

day’s pay.

Keeping in touch days

A woman retains the right to receive statutory maternity

pay for the week in which any such work is carried out

and the period is not terminated by this return to work.

The relevant days need not be worked consecutively

and will be agreed between employee and employer.

Any additional pay for being at work is determined by

the employment contract but the employee must

receive as a minimum the statutory maternity rate for

the week in question. Any work even for just one hour

will count as a whole day for the ‘keeping in touch’

purposes. When the ten days are exhausted the

woman will lose a week’s statutory maternity pay for

any week in which she does any work under her

employment contract.

Maternity and other statutory family friendly payments

Notes
Other issues include:
Adoption pay. The extension of the pay period from 26 weeks to 39 weeks, allowing limited work during the pay period and the
division by seven of the weekly rate of pay applies also to statutory adoption pay where the expected date of placement for adop-
tion is on or after 1 April 2007.
Paternity pay. The division of the weekly rate by seven also applies where children are born on or after 1 April 2007.
Lower age limits. The lower age limit is removed from SMP and paternity pay so that employees under 16 gain entitlement. It is also
removed from statutory adoption pay but this has little practical effect, as the minimum age to adopt remains at 21.

The Work and Families Act 2006 provision to allow leave and pay to be transferred in part from mother to father is expected to
be brought into force in April 2009.