Ask an Ealing Expert - Louise Taft of JR Jones Solicitors

This month, family-related law and rights in the workplace

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In this months' column on Employment rights, Louise Taft of JR Jones Solicitors gives us the lowdown on what you can and can't do whether you're in charge, or have own  charges of your own.

Parents’ Rights At Work

Rights to time off and for flexible working for parents have been extended and developed over the last 10 years, and there is more to come, with a new right to transfer part of maternity leave to a father on the horizon. I hope to make clear the current rights and give some clues as to what to expect in the future. This article deals with Maternity, Paternity and Adoption Leave. Next month I will go through flexible working, parental leave and risk assessments.

Maternity Leave

All pregnant employees are now entitled to both Ordinary and Additional Maternity Leave. Both last 6 months. This means that in practice all pregnant employees can now take 12 months Maternity Leave.

There are subtle differences between Ordinary and Additional Maternity Leave, but there are broadly more rights when on Ordinary Maternity Leave (OML) than Additional Maternity Leave (AML).


The employee must give notice of her pregnancy and the date on which she intends to start her maternity leave no later than 15 weeks before the week her baby is expected (known as the expected week of childbirth, or EWC). She can change her mind about the start of her maternity leave but must give 28 days notice before the earliest of the new date or original date. There is then a duty on the employer to tell the employee the date her maternity leave will end.

If the employee wants to return to work before the end of her AML (ie take less than 12 months leave), she must give at least 8 weeks’ notice. If she changes her mind, she must again give 8 weeks’ notice. If not, the employer can postpone her return for 8 weeks or to the end of the AML, but only if they gave the proper notice of the end of the maternity leave.

Reasonable Contact

The new regulations confirm that employers can have reasonable contact with employees during maternity leave. Previously some employers were concerned that they should not be getting in touch with employees on maternity leave, which led to a situation where employees felt “abandoned” when on leave. There is now no excuse for not keeping in touch and keeping employees on maternity leave informed of developments at work.

Employers who don’t keep in touch leave themselves vulnerable to sex discrimination claims: failure to inform employees on maternity leave of promotion opportunities at work have been found to be sex discrimination, even where the Tribunal found that the employee would not have got the promotion if she had applied.

Keeping in Touch Days

The new legislation brought in the concept of keeping in touch days. This allows an employee on maternity leave to work up to 10 days during that leave without losing any of her entitlements. Neither employee nor employer can force the other to have these days. An employee who suffers any “detriment” or dismissal either for working or not working during maternity has a claim against her employer.

Its clearly therefore a voluntary system set up to facilitate ad hoc days that an employee might wish to work and where it suits the employer. It may also be useful to allow employees to come in for training.

No one at the DTI drafting the legislation thought to confirm that the employee has the right to be paid her usual salary for these days, though presumably no one would agree if this wasn’t going to be the case! An employee who is not paid would have to rely on the Equal Pay Act or minimum wage legislation.

No small employer exemption

The old exemption for small employers of less than 5 employees from the legislation making dismissal for pregnancy or maternity reasons automatically unfair has been repealed. All employers are now at risk of claims under this provision. Employers dismissing pregnant employees or those on or recently returned from maternity leave should be especially careful to protect themselves from allegations that the real reason for dismissal is the pregnancy or maternity leave. They could also face sex discrimination claims.

Statutory Maternity Pay

The amount of maternity pay has now increased to 39 weeks. There is a proposal to increase it to a total of 52 weeks (i.e. the full length of maternity leave) by April 2010.

Statutory Maternity Pay is available to employees who have been continuously employed for 26 weeks, 14 weeks before their EWC provided they have earned above the national insurance lower earning limit for the previous 8 weeks. This hideously complex provision essentially means that most women who joined an employer before they became pregnant will qualify. Those who don’t qualify for Maternity Pay from their employer can claim Maternity Allowance from the Department for Work and Pensions if they have made enough national insurance contributions.

Maternity Pay is 90% of average usual earnings for the first 6 weeks and a flat weekly rate (currently £112.75) thereafter, whichever is lower. Maternity Allowance is £112.75 or 90% of average usual earnings if this is lower.

Paternity Leave

Paternity leave is available to fathers and partners of women having children, if they expect to be responsible for the upbringing of the child, including lesbian partners. Again it is available to most fathers who have worked for their employer before the pregnancy began, continuously for 26 weeks 14 weeks before the EWC.

A father can take either one or two consecutive weeks within 56 days of the birth. He must give 28 days notice unless this is impracticable, which of course in most cases it is as most fathers want to take leave immediately the child is born, and indeed to be at the birth.

Statutory Paternity Pay is currently £112.75 per week or 90% of average earnings if this is lower.

There is a proposal to allow fathers to take up to 26 weeks paternity leave if the mother has returned to work. This has yet to be fine tuned and won’t come in before April 2010.

Adoption Leave

There are similar rights for parents adopting children. Broadly, one parent is entitled to the equivalent of maternity leave and pay and the other equivalent of paternity leave and pay.

November 2, 2007