Maternity leave politics

With women forming an ever-increasing proportion of the workforce, it's essential for any employer to have a sound policy on maternity leave. Emilie Bennetts explains.

THE PROBLEM

The proportion of women in employment in the UK has grown significantly in recent decades. In December 2008 the employment rate for women was 70%, compared with 56% at the start of 1971. With so many women in the workplace, it is crucial for employers to have a clear maternity leave policy in place. This is important not only to enable the employee to understand her entitlements, but also to provide guidance to the employer on its responsibilities.

THE LAW

There is a statutory framework in place for pregnant employees and those on maternity leave. A maternity leave policy must at least reflect the statutory minimum.

WHAT ARE THE KEY RIGHTS?

The key statutory rights for pregnant employees and those on maternity leave are as follows:

• time off to attend antenatal appointments;
• health and safety protection while pregnant and breast feeding;
• up to 52 weeks' maternity leave;
• Statutory Maternity Pay ("SMP") for up to 39 weeks;
• the right to return to the same job;
• priority for alternative employment in redundancy cases;
• the right to request flexible working conditions on return to work; and
• protection from dismissal, detriment or discrimination by reason of pregnancy or maternity.

CAN I ENHANCE THESE RIGHTS?

You may wish to improve on the statutory rights in order to retain employees and encourage them to return to work once their baby is born. There are a number of areas for possible improvement of the statutory scheme, including:

• increased flexibility over the start date for maternity leave;
• payment of contractual maternity pay that is more generous than SMP;
• allowing the employee greater flexibility over her return date;
• providing a return to work bonus to encourage employees back to work;
• automatic right to take parental leave (consider limiting this to a certain number of weeks) immediately after maternity leave, subject to giving the appropriate amount of notice;
• automatic right to tack any unused paid annual leave entitlement for the remainder of the year on to the beginning or end of maternity leave, therefore delaying the employee's expected return date;
• allowing mothers returning from maternity leave to work part-time as a right or giving them preferential consideration over other employees. If this is allowed, employers should consider making a substantially similar allowance to new fathers who wish to work part-time, otherwise the policy risks being discriminatory on the grounds of sex.

HOW CAN I LIMIT ACCESS TO AN ENHANCED CONTRACTUAL SCHEME?

An employer considering offering contractual maternity benefits over and above the statutory scheme should limit such benefits in order to protect its position and ensure that employees do not take advantage. Consider the following limitations:

l stipulating a qualifying period of employment (for example, two years) in order for the employee to qualify for access to the enhanced contractual scheme;

l providing that employees who return from a period of maternity leave do not qualify for the enhanced contractual scheme again unless, at the date of the qualifying week of their further maternity leave, they have completed a further minimum period of service;

l providing that an employee who does not come back to work for a minimum period (such as 9 or 12 months after her maternity leave ends) must repay all or part of the enhanced maternity pay that she receives during maternity leave, as well as any return to work bonus awarded to her.

EXPERT ADVICE

Employers are advised to ensure that they have an easily accessible maternity leave policy in place that clearly sets out the rights and obligations of the employee, both in terms of the statutory scheme and any contractual enhancements that the employer may wish to offer. Make sure that the policy clearly sets out the procedure that an employee needs to follow (for example, the timelines she must adhere to).

TO DO CHECKLIST

Ensure that employees know who at the employer has overall responsibility for implementing the policy and who their point of contact for day-to-day questions regarding it should be.

• Define the key concepts in this area of law, such as "expected week of childbirth" and "qualifying week" at the outset of the policy.
• Ensure that the policy clearly sets out what the rights are during pregnancy and maternity leave. If you wish to offer an enhanced contractual package, ensure that it clearly sets out what, if anything, the employee needs to do or have in place (such as a qualifying period of service).
• Set out the procedure for the employee to let you know her expected return date, and explain what would happen if she decides to return from maternity leave early or late. Set out what would happen if the employee decides not to return to work.
• Finally, explain what the employee's rights are when she returns to work. The employee has a statutory right to return to the same job or a suitable alternative. Consider dealing with the employee's right to request to return to work part-time. This should be reflected in any paternity leave policy.

BEWARE

Discriminating against or dismissing an employee because she is pregnant or on maternity leave can lead to employment tribunal claims for unfair dismissal, unlawful detriment or sex discrimination. A well-drafted maternity leave policy will prevent misunderstandings and has the benefit of awarding and retaining long-serving employees and can be structured to provide the employer with as much protection as possible.

CONTACT
Emilie Bennetts, solicitor, Charles Russell LLP