Eleven essential questions about maternity, paternity and adoption leave.
1. As SMP is payable for 39 weeks, does this mean that ordinary maternity leave is 39 weeks?
No, ordinary maternity leave and additional maternity leave remain at 26 weeks each. Women are now entitled to the same benefits during additional maternity leave as they receive during ordinary maternity leave. Therefore, such terms as the accrual of annual leave and bank holidays, the payment of essential car user allowance, the provision of a lease car should continue to apply during the additional maternity leave period. (For employees employed under Green Book terms and conditions, annual leave has accrued during ordinary and additional maternity leave for some time (paragraph 11.8(b) of Part Two of the Green Book).
2. Is there any change to the qualifying condition for occupational maternity pay?
No, this remains at 1 year's continuous service by the beginning of the eleventh week before the expected week of childbirth.
3. What are the implications of the introduction of keeping in touch (KIT) days? Do we have to pay a woman for working on a KIT day?
The maternity leave regulations have been amended to provide that a woman can do 10 days' work during her maternity leave without bringing her maternity leave to an end (KIT days). Working for part of a day will count as one day. The SMP regulations have also been amended to provide that a woman will not lose any SMP for working for up to 10 days. A woman will lose her SMP for any week in which she does any further work beyond the 10 day limit.
Work is defined as any work done under the contract of employment and may include training or any activity undertaken for the purposes of keeping in touch with the workplace.
This provision is designed to facilitate a woman working during this period. An employer cannot insist that a woman carries out any work and she is protected from suffering a detriment or being dismissed for refusing to do so. Equally, a woman cannot insist on being given any work to do.
A woman's maternity leave will not be extended due to the fact that she has carried out some work during this period.
Whether and what a woman should be paid for any work that she does during these 10 days is a matter for agreement between the employee and employer in accordance with the authority's policy. A woman will continue to receive her SMP (and occupational maternity pay (OMP)) for the week in which she works, however, in most cases a woman should be paid for any work she does under the contract. Issues to take into account will include the nature of the work and its duration. It is open to an employer to offset the SMP and/or OMP for the period worked against any pay due. These matters should be discussed and clearly agreed before any work is undertaken.
Note that an employee cannot carry out any work during the first two weeks following the birth of the child. It is an offence to permit an employee to work during this period (known as the compulsory maternity leave period) and the employer may incur a fine.
4. Does annual leave continue to accrue during maternity leave? What do we do about the fact that a woman may be on maternity leave during most of her annual leave year?
The Employment Rights Act provides that a woman is entitled to all her terms and conditions during both ordinary and additional maternity leave (OML and AML), apart from remuneration, as though she was at work, so she must accrue her leave, including bank holidays, throughout the whole of the maternity leave period. For those women employed under the Green Book, this has been the case for some time (see paragraph 11.8(b) of Part 2 of the Green Book).
This could mean that a woman has a significant amount of leave to take when she returns from maternity leave. This issue can be managed to some extent by advising a woman about the amount of leave she will accrue if she takes the whole of her maternity leave entitlement. A woman may then, depending on the timing of her maternity leave in relation to the annual leave year, take a significant proportion of her annual leave before she starts her maternity leave.
If a woman is unable to take all of her annual leave in the leave year due to being on maternity leave she must be allowed to carry it over. The European Court of Justice in the Gomez case held that a woman must be able to take the annual leave that she is entitled to at a time outside her maternity leave. Although in most cases this should be possible without having to carry leave over, where a woman is unable to take her annual leave before she starts her maternity leave due to the early birth of her child or pregnancy-related sickness absence, for example, or where a woman's maternity leave overlaps with the annual leave year to a significant extent, exceptions should be made to carry over policies to allow women to carry the remaining period of leave into the next leave year.
5. Do we have to give a woman a substitute day's leave for bank holidays that fall during maternity leave?
The Employment Rights Act provides that a woman is entitled to all her terms and conditions during both the ordinary and additional maternity leave periods (OML and AML), apart from remuneration, as though she was at work. In the case of employees employed under the Green Book, this can be interpreted as meaning that a woman should be given a day's leave for each bank holiday that falls during the OML and AML periods.
The obligation to give a woman substitute leave for the bank holidays that she was unable to take during her maternity leave was reinforced by the European Court of Justice (ECJ) decision in Gomez . This case concerned a fixed holiday period that fell during Ms Gomez's maternity leave. The ECJ held that a woman must be able to take her annual leave at a time outside her maternity leave. Bank holidays are effectively a fixed day's leave and it is believed that this principle should therefore be applied in such cases.
6. Do we have to continue to pay essential car user allowance to a woman on maternity leave and, if so, for how long?
The Employment Rights Act provides that a woman on ordinary and additional maternity leave is entitled to the benefit of her terms and conditions, apart from remuneration, as if she was at work. HM Revenue & Customs guidance is that a car allowance is remuneration and therefore an employer does not have to continue to pay the car allowance during the entire maternity leave period. However, the car allowances provided under the NJC for Local Government Services (the 'Green Book') are calculated on an annual assessment of what it costs the individual to provide their car for business use. This payment is intended to reimburse the employee for the expense of running a car which they provide for the council's business purposes. Obviously, the car can also be used for private purposes. The allowance therefore helps the employee provide a car which they can use for private purposes and therefore provides a benefit under the contract. In these circumstances, the allowance is a payment towards the costs of maintaining a car and these costs will continue during maternity leave.
Local authorities should assess how their essential car user allowance payments can be categorised - as remuneration or as a benefit of the contract as set out above. LGA advice is that where this payment provides a benefit it should continue throughout the entire maternity leave period.
7. Should an employee on adoption leave continue to accrue their annual leave? What about essential car user allowance?
The adoption framework reflects the maternity scheme. During ordinary and additional adoption leave an employee is entitled to all their terms and conditions, apart from remuneration, as though they are at work. They will therefore be able to accrue annual leave and bank holidays during this period. They should also receive essential car user allowance in line with the advice provided in question 6.
8. One of our employees is pregnant. We also employ her mother and husband. The mother has requested maternity support leave and the father has given notice that he intends to take statutory paternity leave. Are they both entitled to leave?
The purpose of maternity support leave is to allow an employee leave where they are the main support for the mother and/or carer of the child. If the authority knows that the father intends to take his entitlement to maternity support leave (MSL) and/or statutory paternity leave (SPL) then there will be no need for a ‘nominated carer'. The mother will therefore not be eligible for MSL.
Authorities could manage this situation by not granting requests for MSL until the end of the 15th week before the expected week of confinement. This is the date by which a father or partner should have given their employer notice that they intend to take SPL.
9. An employee gave birth on Tuesday, before she had started her maternity leave. When does her maternity leave start?
Where a woman has not started her maternity leave when she gives birth, it will start on the day following the birth, in this case on the Wednesday. Statutory maternity pay (SMP) will also start on the following day (Wednesday) and will run for the full 39 weeks.
10. If an employee is off work sick with a pregnancy-related condition when does her maternity leave start?
A woman's maternity leave can only be triggered by pregnancy-related absence from the beginning of the 4th week before the expected week of childbirth. (This has been reduced from 6 weeks before). If a woman is off sick with a pregnancy-related illness during this period then her maternity leave will start on the day following the first day on which she was absent. Her SMP will also start on this day and run for the full 39 weeks.
For example, if a woman became sick on a Sunday and was off work on the Monday, her maternity leave and pay would begin on the Tuesday.
Employers should remember that they do not have to trigger the start of maternity leave. They may decide not to do this if a woman is only absent for a short period and wishes to continue working.
11. Can we still spread the half pay over a longer period than weeks 7 to 18 now that SMP is payable for 39 weeks?
At the time of the extension of SMP from 18 to 26 weeks a number of authorities expressed concern over the fact that there would be no occupational maternity pay during weeks 19 to 26. The Green Book was therefore amended to make it clear that the authority and the employee could come to an agreement to pay the ‘half pay' over a different timescale to the traditional 12 weeks i.e. weeks 7 to 18 (see paragraph 11.5(b)(ii)). However, an authority is not obliged to agree to a request if, for example, it would cause administrative problems. This provision still applies now that SMP will be paid for 39 weeks.
If the employee chooses (with the employer's agreement) to have payment over a different timescale her pay should be calculated as follows.
- The amount that she would have received if she had had her pay over 12 weeks (weeks 7-18) should be calculated. This should take into account the fact that an employee may receive less than half pay, if half pay plus SMP exceeds full pay.
- This amount should then be divided by the number of weeks over which it is to be paid. For example, if the employee wants it to be paid over weeks 7 to 39, divide by 33.
In practice there will probably be only three different approaches to paying half pay:
- Pay over 12 weeks, i.e. weeks 7 – 18
- Pay over a different period up to 33 weeks, i.e. weeks 7 – 39
- Pay in a lump sum once an employee has returned to work.