maternity leave rights
Pregnant employees are entitled to 26 weeks' ordinary maternity leave (OML), regardless of their length of service ....more
Recent regulations on parental leave and flexible working can be confusing, Peter Done, managing director of Peninsula, employment firm looks at the rules ....more
There's a wide range of government benefits to support you as you bring up your family if you're on a low income and need assistance. This is a brief guide to some of the key benefits that you may be eligible to receive ....more
Women have been known to be resilient to the changes of society and economy. It is no wonder that more and more career-oriented women, who have been an essential part of the workforce, have not let the condition of their pregnancy get in the way of keeping their jobs. The key here is to strike a balance in managing the resulting effects in the changes in her body with the necessity to manage her time at the work place ....more
Understand maternity leave entitlements & rights
Contact the ACAS free helpline for further guidance on 08457 47 47 47
See the YourPeopleManager Briefing: Employment Legislation 2003 for in-depth guidance on the impact the Employment Act 2002 has had to parental leave regulations.
The government is committed to promoting family friendly policies and, as of 6 April 2003, extended maternity leave rights and pay.
Leave
Pregnant employees are entitled to 26 weeks' ordinary maternity leave (OML), regardless of their length of service.
Women who have completed 26 weeks' continuous service with their employer by the 15th week before their expected week of childbirth (EWC) are entitled to take a further 26 weeks' additional maternity leave (AML).
Extended OML and the right to AML, means that new mothers have the right to take up to one year's maternity leave in total.
The earliest date maternity leave can be taken is the beginning of the 11th week before the EWC.
Pay
Statutory Maternity Pay (SMP) continues to be paid at a rate of 90% of the employee's pay for the first six weeks of OML. The remaining 20 weeks are paid at a rate of £102.80 per week or 90% of the employee's average weekly earnings whichever is lower. AML continues to be unpaid. Employers can and do pay above these statutory amounts.
The employer pays SMP but the business may claim back 92% of the payment amount by deducting that percentage from National Insurance Contributions payments to the Inland Revenue. To alleviate the burden on small firms, businesses whose total gross NI costs in the previous tax year were £40,000 per annum or less can recover up to 104.5% on SMP in compensation for employer National Insurance costs. Employers that pay over and above the statutory minimum requirement for SMP can only claim back the statutory amounts not the full cost of the SMP payments paid to their staff.
Contractual benefits
Except for terms relating to remuneration, women are entitled to accrue the benefit of their normal terms and conditions of employment throughout the 26 week OML period.
During AML, the employment contract continues and some contractual benefits and obligations remain in force.
The entitlement to paid holiday under the Working Time Regulations is not affected by maternity leave.
Expectant mothers are entitled to take reasonable time off for antenatal care; this may include medical appointments, relaxation and parent craft classes. No qualifying period of employment service applies to this right. Employees, who take time out in this way, are paid at their full rate for these periods of absence.
SEE ALSO
Focus on: Changes to parental rights
An introduction to the Government's 2002 'family friendly' rights for employees
Starting maternity leave
Expectant mothers must notify their employers in or before the 15th week before the EWC. Prior to 6 April 2003, the requirement had been notification at the 11th week before the EWC. The entitlement for OML now requires longer notice than had previously been required.
Within 28 days of receiving notification, employers must respond to the employee in writing, stating the employee's expected date of return. If the employer fails to advise the mother of her expected date of return, she cannot be prevented from returning early. She is also protected if she fails to return on the due date.
Prior to 6 April 2003, employees who were absent from work with pregnancy-related sickness 6 weeks prior to the EWC or on the first day of sickness following the beginning of the 6th week before the EWC, could automatically start their period of maternity leave. The new regulations reduce this starting point to a 4-week period.
Returning to work after maternity leave
It is unlawful for a woman to return to work within 2 weeks of giving birth (4 weeks for factory employees). A woman who wants to return to work before the end of her maternity leave period (either OML or AML) must give her employer at least 28 days' notice previously this notice period was 21 days.
At the end of OML and AML a woman has the right to return to the same job with the same terms and conditions, unless a redundancy situation has arisen, in which case she is entitled to be offered a suitable alternative vacancy. In the case of AML, the employee may not always be entitled to return to the same position if the employer can show that there is some reason why it is not reasonably practicable for the business to take her back to her original job. Employers should seek advice if they are considering this.
Protection from dismissal and detriment
If a pregnant employee is dismissed for any reason connected with her pregnancy or because she took maternity leave, she can make a complaint to an Employment Tribunal.
Dismissing a woman in connection with her pregnancy is automatically unfair. Women are also protected from unfair treatment at work in connection with pregnancy, childbirth or taking maternity leave. An employee who believes she has been treated unfairly on any of these grounds can complain to an Employment Tribunal.
Parental leave and flexible working
Recent regulations on parental leave and flexible working can be confusing, Peter Done, managing director of Peninsula, employment firm looks at the rules.
Purpose
The purpose of parental leave is to allow parents to care for a child. This means looking after the welfare of a child and that includes making arrangements for the good of the child. Thus the definition might include factors like spending more time with the child; to accompany a child to hospital; to investigate new schools and new childcare arrangements and to settle them in; or to enable the whole family to spend more time together.
Should a parent use the leave for some other purpose than to look after the child it is a breach of trust and honesty and can be dealt with through the normal disciplinary procedures. Thus away team matches, shopping sprees and fishing trips do not qualify for parental leave!
Statutory, default, scheme
The right is a statutory one and applies to both parents for each individual child. Therefore, the birth of twins entitles both parents to twice the entitlement; triplets thrice and sextuplets do not bear thinking about! Statutory parental leave is unpaid although it is open to employers to enter into contractual agreements to make some or all of this leave paid. (Research in other EU States shows overwhelmingly that there is a greater take up of parental leave, particularly by men, when the leave is paid.
The Government would be keen to see more employers give paid parental leave. Indeed it might be argued that the introduction of paid paternity leave, introduced after the introduction of parental leave, is a step in that direction. Clearly many people believe that a child needs lots of attention from parents, especially at certain crucial periods or times and only paid parental leave will support this.
Because of the volte-face regarding children under five on 15 December 1999 there are two sets of rules. It is, perhaps, a little comfort to know that with effect from 31 March 2005 one group will have worked themselves out of the system.
The basic statutory right is to take up to 13 weeks' unpaid parental leave during the first five years of the child’s life. In the case of adopted children the right is still to 13 weeks' unpaid leave but, in this instance, to be taken up to five years from the date the child was placed for adoption or until the child’s 18th birthday, whichever is the sooner.
Parents become entitled to statutory parental leave once they have completed one year's continuous employment with the employer.
At least 21 days notice of intention to take leave must be given and the exact date of start must be stated. (The exception to this is for fathers who wish to take leave straight after the baby is born, or prospective adoptive parents from the date straight after the child is placed with them, where in both cases, the precise date of each event cannot be foretold).
In these cases at least 21 days' notice of the EWC or expected week of adoption must be given. It is also possible that employees might opt for statutory paternity or adoption leave in these circumstances, since these rights are now open to them (with effect from 6 April 2003) but which were not open previously when their only option was statutory parental leave).
Parents cannot take more than four weeks per annum. Any leave taken is deemed to be in weeks so if an employee takes two days' leave in one week that will count as one week's leave taken. If the parent took two separate days in succeeding weeks then that would be two weeks of their entitlement used up.
The employer may postpone statutory parental leave where, in the employer's view, to take such leave would unduly disrupt the business. The employer can also do so if proper notice is not given.
In cases where a father wants leave immediately following the birth, or adoptive parents immediately after the adoption placement date, the employer cannot postpone the leave.
Where the employer does postpone a period of leave they can only do so where it is agreed to permit the employee to take an equivalent period of leave on a date agreed with the employee, following consultation, and which must not be later than six months after the would be commencement date of the previously postponed period. The employee must also be given the reasons for postponement, in writing, within seven days of receipt of the employee's notice to the employer.
While there is no statutory requirement for record keeping it would be a foolish employer who did not ensure at least that any requests are recorded, and especially details of why any request was refused and when the subsequent "replacement leave" was taken.
You can ask for evidence to support a request for the parental leave. If you do so, do it for everyone applying!
Such leave is an individual right and is not transferable, i.e. one parent cannot transfer their 13 weeks to the other parent.
An employee returning to work after an isolated four weeks or less is entitled to return to the same job. Returning after a period of more than four weeks, or which consecutively followed a period of additional maternity, or additional adoption leave, is entitlement to return to the same job, or if that is not reasonably practicable to return to another job which is both suitable and appropriate for him/her in the circumstances.
Variations
Described above are the basics of the Statutory Default Scheme. Some exceptions apply. Chief amongst those are:
Children born or adopted between 15 December 1994 and 14 December 1999.
The 13 weeks' unpaid parental leave entitlement is to be taken between 10 January 2002 and 31 March 2005. To be taken on the basis of four weeks per annum maximum and the remaining week in the first three months of 2005. Parents who adopted during the above dates are equally entitled to 13 weeks but, in their case, to be taken before 31 March 2005 or the child's 18 birthday, whichever is the sooner.
While the normal requirement is for a parent to have been continuously employed for one year before becoming entitled to parental leave, parents of these children, if they worked for a previous employer, during this time, for more than a year, do not have to have worked for the current employer for more than a year before qualifying. The service with the previous employer counts.
Disabled children (where the parents are entitled to disability living allowance)
Parents of disabled children may take 18 weeks' unpaid parental leave prior to the child's 18th birthday.
Parents of disabled children have the flexibility to take statutory parental leave a day at a time if they wish and not to have a week deducted on each occasion.
Such parents are entitled to parental leave if they have completed one year's continuous employment with the current employer, or with a previous employer during the period between 15 December 1998 and 9 January 2002.
Contractual/collective/workforce parental leave schemes
It is open to employers and employees to agree their own rules relating to parental leave. Such agreements cannot offer less than the key aspects of the statutory parental leave. They can vary any aspect of the scheme to allow paid parental leave, either at normal pay or some lesser rate; to be taken in days (and not lose a whole week each time); to take any amount per annum; arrangements for postponing leave, etc.
Time off for dependants
When the rules for this right were being drafted someone did not notice that by 'cut and pasting' across existing similar paragraphs in the parental leave drafts they had entered a requirement to give at least 28 days notice of the impending emergency! Subsequently the final legislation did not contain that requirement.
Employees have dependants. Dependants have emergencies. Dependants are not necessarily only children. Emergencies, by their very nature cannot be foreseen. The time it will take to deal with the problem cannot always be accurately forecast. Consequently the regulations are written so that employees can take unpaid time off to deal with the situation without the fear of losing their job.
The right only applies if the employee, as soon as is reasonably practicable, tells the employer why they are absent and for how long the absence is likely to last.
A dependant is defined as a parent, wife, husband or child, someone who lives with the employee as part of the family (not an employee of the family), attendant, lodger or boarder. The regulations also allow someone to be a dependant who relies on the employee in particular circumstances of an illness, injury or assault until resumption of normal care arrangements.
No pre-determined maximum amount of leave which can be taken is set out in the regulations. However, they do state that it is anticipated that time off in such circumstances is to deal with immediate issues, e.g. to deal with rearranging care for an ill or injured dependant not to care for them him/herself long term. Therefore, such absences should not be for more than one or two days.
There is no length of service requirement to qualify for this right.
Again, as with parental leave, any employee taking such leave but using it for anything unconnected with an emergency regarding the dependant, could be subject to disciplinary action if caught out.
Right to Request Flexible Working
The important point to note with this legislation is to note that it is a right to request, not a right to be given, flexible working. The employer must not treat such a request lightly but it is legitimate to refuse the request, having followed proper procedures, if there is a genuine commercial reason why such a request should be refused.
The right is to request a contract variation to be able to care for a child. No further application can be made before the end of a period of 12 months beginning with the date of submission of the first application. This means that a parent could request such a variation a number of times until up until two weeks before the child’s sixth birthday (18 in the case of a disabled child). What the regulations do not do is give the employee the statutory right to return to the original pattern of working. Once the contract has been varied it stays that way unless a further “flexibility” variation is requested. (It is always open to the employer to agree to any variation “contractually” if they wish to do so).
Specified grounds for refusal of application
There are only eight grounds upon which an employer can rely to justify refusing a request. They are:
If the refusal is not based on one, or more, of the above it will be illegal.
Right of appeal
An employee wishing to appeal against a refusal must do so in writing, set out the grounds for appeal and be dated, and do so within 14 days after the date on which the refusal notice was given.
The employer must then hold an appeal meeting, within 14 days of receipt of the appeal, unless, within that time, the employer gives the employee written notification that the original decision has been overturned, in which case it must specify the variation which has now been agreed and the date on which it will take effect. If the appeal is held it must be at a time and place convenient to both the employer and employee.
The employer must give the employee written, dated notice of the decision regarding the appeal, within 14 days after the appeal meeting.
Where the employer upholds the appeal the notice must specify the contract variation agreed and state the date on which it is to commence. Where the employer dismisses the appeal the notice must state the grounds for the decision and contain sufficient explanation as to why those grounds apply.
Extension of time periods, rights to be accompanied and withdrawal of application and remedies for breach
These are rules relating to reaching agreement to extend time periods; there is a right to be accompanied by a single companion; who is a worker also employed by the employer and rules regarding how they may be involved, including time limits if the companion is not available for the proposed meeting date. An employer can treat the application as withdrawn in some circumstances where the employee has not actually withdrawn it.
Complaints of alleged breach by an employer can be brought before an Employment Tribunal by the employee. Depending on the precise nature of the breach Tribunals have a number of options open to them if they find there was a breach ranging from: a declaration; to order the application to be reconsidered by the employer; to award up to two weeks' pay for some breaches; up to eight weeks' pay for another.
The week's pay is subject to the statutory maximum level of a week's pay and the claim to Tribunal must be submitted within three months of the date on which the application was refused, or from the date of the breach, if applicable.
It is important for employers that they follow the procedural steps laid down by the regulations. Infringement of the procedures will certainly lead to conviction in the Tribunal if a complaint is made. Refusal of the request, if it has been considered properly and thoroughly and rejected for an authorised reason, will not lead to conviction.
The employee has the right to request, not the right to have a variation to his/her contract of employment. Leaving aside statute (for the moment!) is it not commonsense and good practice to consider any request from any employee, for a change to their contractual terms, properly? It is unfortunate that Government, when they legislate never use one rule or procedure when ten will do, but that in reality is what this legislation seeks to do - do not reject it out of hand - think about it, consider all the factors and then decide.
Government benefits - bringing up a family - by Benedict Rohan
There's a wide range of government benefits to support you as you bring up your family if you're on a low income and need assistance. This is a brief guide to some of the key benefits that you may be eligible to receive.
Child benefit - almost everyone who has a child under 16 (or under 19 and still in full-time secondary education) qualifies to receive child benefit as it's not means-tested. You'll be given a form from the hospital when your child is born, or you can make your application online on the Her Majesty's Revenue and Customs (HMRC) website. You'll receive an amount for every child you have - a larger sum for the first child and a reduced sum for each additional child. It's normally paid every four weeks, but you can arrange to receive it weekly if you're on a low income and receive other benefits. It can be paid directly into your bank account or posted to you as a cheque, which you can cash at any post office. The benefits don't count as income so they won't be taxed and won't affect any other benefits you receive.
Child tax credits - if you have children under 16 and your family income is less than £58,175 per annum (or £66,350 if you have a child under one), you may apply for child tax credits, a regular payment which is means-tested, i.e. based on you and your partner's annual income. There are two parts to the payments - a family element, paid to any family with children, and a child element, an additional sum for each child in the family. If you have a disabled child or a child under one, you may receive more money. Child tax credits are handled by HMRC, so to apply you'll need to phone or write to them. Online applications are not available at present.
Child maintenance - if you have a child whose other parent doesn't live with you, the non-resident parent is obliged to give you money to help you bring up the child. A government body called the Child Support Agency (CSA) will collect and make the payments on your behalf. The amount that you'll be given will depend on the non-resident parent's income, how many children you have who qualify for maintenance, and how many children the non-resident parent has living with them. Either the non-resident parent will pay you directly or you can arrange for the payments to be made to you through the CSA. Any amount that you receive in child maintenance won't affect any child tax credits that you receive. For information on how to apply, contact the CSA.
Statutory maternity pay- women who are in work are entitled to maternity pay to allow them to take time off work when their baby is born. To qualify, you must have been working with the same employer for at least 26 weeks by the 15th week before the estimated date of delivery, and have earned at least £84 per week. You'll get 90% of your average weekly earnings for the first six weeks, followed by a further 20 weeks at £108.85 or 90% of your average earnings, whichever is less. You'll receive your maternity pay through your employer's payroll, and tax and national insurance will be deducted as they would from your normal pay. To claim statutory maternity pay, you should speak to your employer at least 28 days before you plan to stop work. Note that some employers have their own maternity policy instead of statutory maternity pay, which will pay you more money.
Statutory paternity pay - new fathers are also now entitled to paid time off by the government. To qualify, you must be the father of your wife or partner's baby, or the adoptive father of the child, or the husband or partner of the adoptive mother of the child, or have responsibility for bringing up the child. To qualify, you must have been working with the same employer for at least 26 weeks by the 15th week before the estimated date of delivery, or employed up to the week when you or your wife/partner were matched with an adoptive child, and be earning at least £85 per week.
You'll be paid £108.85 for two weeks, or 90% of your average weekly earnings, whichever is less. As with statutory maternity pay, you'll receive it through your employer and national insurance and tax will be deducted. To apply for statutory paternity pay, you'll need to inform your employer at least 15 weeks before the baby is due, or within a week of being informed that youv'e been matched with an adoptive child, and you'll need to take the leave within eight weeks of the adoption or birth of the child.
Welfare food scheme - the government can help you buy baby formula, milk, fruit and vegetables and vitamins if you're on a low income and receiving other benefits such as income support, jobseeker's allowance or child tax credit if you and your partner earn less than £14,155 per annum. If you're pregnant, you'll receive vouchers for seven pints (four litres) of cow's milk a week. If you have children, you'll get the same amount of milk for each child aged between one and five.
You can exchange the vouchers for milk at any shop that accepts them. You'll also receive free vitamins and tokens for 900 grams of infant formula per week for children under one, which you can collect at your local health centre or NHS clinic. To apply for free milk when you're pregnant, let your midwife or healthcare practitioner know.
To apply for the free food for children, you'll need to apply for child tax credit as soon as your child is born. A new programme called Healthy Start is currently being trialled in Devon and Cornwall, in which vouchers worth £2.80 can be exchanged for milk, baby formula, vitamins and fresh fruit and vegetables in any shop that accepts them.
Tips for Pregnant Professionals - by Elysiana Canlas
Women have been known to be resilient to the changes of society and economy. It is no wonder that more and more career-oriented women, who have been an essential part of the workforce, have not let the condition of their pregnancy get in the way of keeping their jobs. The key here is to strike a balance in managing the resulting effects in the changes in her body with the necessity to manage her time at the work place. Moreover, most companies now recognize the need to provide support in terms of maternal benefits to these working moms.
The main concern of these working mothers is to keep their health in check and to stay fit for work. These are some tips to ensure that common ailments can be minimized, if not avoided.
It is prevalent among pregnant women to experience morning sickness or nausea. What can a working mom do to not let this interfere with their work? In the morning, getting up from bed immediately can cause the dreaded morning sickness. To avoid this, spend a few minutes lying on the side of the bed before starting the day on your feet. Movement can only aggravate nausea so it is better to move with care. Being pregnant gives a woman a valid excuse to eat more than three times a day. Aside from eating for two (three or more if twins, etc.), nausea can be minimized by eating smaller portioned meals in a day (say five or six) because the objective here is to avoid having an empty stomach. In addition, drinking lots of fluids everyday and breathing fresh air from the outdoors can help alleviate this type of illness.
Another major issue with pregnant women is getting swollen feet and having varicose veins on the legs. To improve blood circulation, it is recommended that one should perform light to moderate exercise for around 30 minutes. The key here is to move a around and to walk around once an hour or so. Aside from preventing weight gain, it also builds on the endurance needed for the much anticipated event of childbirth. Overall, exercise can also promote an overall feeling of improved physical and emotional faculties. Studies have revealed that exercise among pregnant women can place gestational diabetes in check. There are claims that wearing maternity tights or support hoses can significantly reduce the occurrence of unsightly varicose veins.
The next main concern of an expecting mom is to spend some time in doing research on the maternity benefits provided by the company. Information on this will be very helpful in planning the allocation of resources as a result of the expected childbirth. Try to check how much the company will support financially for the actual operation. Some companies are known to fully subsidize this. Nothing beats being prepared by also checking the maternity leave policy to know the allowed leaves, both paid and unpaid.
For moms-to-be, there is a need to correctly identify the perils and risks in the workplace that they are used to. Working around toxic substances for an expecting mother should bring her to seriously consider work reassignment. Teratogens may be a scientific term unknown to many but it is important for pregnant women to know that there are certain reproductive hazards to be cautious of. The reason behind this is that this type of hazard can bring about complications that could lead to unfortunate miscarriages, premature delivery, birth defects and abnormal fetal and infant development. Working with substances like lead, mercury, organic solvents, and also radiation should be avoided at all costs. There may not be dangerous substances at the workplace but jobs that are physically strenuous should be equally considered a risk to expecting moms. Jobs that require long periods of standing and lifting of heavy weights can take a toll on delivering babies prematurely resulting in lower-than-normal birth weight.
Women should also be aware of common risk factors during pregnancy. Mothers-to-be who are pregnant with twins or higher multiples are threatened by premature labor. Women who suffer from hypertension are in danger of preeclampsia, a condition which usually occurs during the latter part of pregnancy. Other risk factors are having cervical incompetence and if the baby is suffering from stunted growth. These may cause expecting mothers to stop working or lessening the hours of work at some point of pregnancy.
Career women who are also home-makers need not worry about working and being pregnant. This write up contains the basic needs of an expecting working mother. However, it should not limit our mothers-to-be from reading other resources so as not to overlook other precautionary approach to ensure healthy conception.
Maternity Leave Rights
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