Maternity leave changes this month

Liz Buchan examines the effect of new provisions relating to maternity leave, which came into effect on 15 December 1999

Most of the provisions only have effect in relation to employees whose expected week of childbirth (EWC) begins on or after 30 April 2000.

While simpler than before, they are not straightforward.

Ordinary leaveAn employee is entitled to ordinary maternity leave if she meets the following conditions:X where practicable at least 21 days before the date on which she intends to start her leave she notifies her employer of: her pregnancy, the EWC, and the date on which she intends to start her leave; andX at her employer's request, she produces a certificate from a registered medical practitioner or a registered midwife stating the EWC.The employer may require that notice of the intended start date should be given in writing.

Ordinary maternity leave generally cannot start earlier than the 11th week before the EWC and lasts for 18 weeks.There are special provisions for premature birth and ordinary maternity leave is also triggered by an employee being absent from work because of pregnancy after the beginning of the sixth week before the EWC.

Additional maternity leaveAn employee is entitled to additional maternity leave if:X she is entitled to ordinary maternity leave (having complied with the notice requirements);X she has, at the beginning of the 11th week before the EWC, been continuously employed for at least a year.Additional maternity leave commences on the day after ordinary maternity leave ends and expires, at the latest, at the end of the 29-week period beginning with the week of childbirth.

Compulsory maternity leave An employer may not allow a woman who is entitled to ordinary maternity leave to work in the two-week period commencing with the day on which childbirth occurs.

Notice of return An employee on maternity leave - whether ordinary or additional - is not required to give prior notice of return if she simply intends to return at the end of the maternity leave period, but an employee who intends to return to work early must give 21 days' notice.If an employee tries to return early without giving sufficient notice, her employer can send her home, only to return when the employer has had the full 21 days' notice, although this cannot take the employee beyond the end of the leave period.

If the employee insists on returning early the employer does not have to pay her until the due return date.

Notice for additional maternity leaveIf the employer has not heard from the employee since the birth, then not earlier than 21 days before the end of her ordinary maternity leave period, the employer can write to her asking her to confirm the date of birth and that she intends to return to work at the end of her additional maternity leave period.

The request should be accompanied by a statement explaining how to calculate the expiry date of the additional maternity leave and warning of the consequences of failing to respond within 21 days.

One of the consequences is that the employee loses her protection from detriment and her automatically unfair dismissal protection on grounds of taking additional maternity leave.

However, if she is dismissed for failing to respond the dismissal may be unfair on the usual grounds and may also be discriminatory.

Grounds of sickness There is no longer the power to delay the date of return on the grounds of sickness, and if a woman is ill after her leave, the employer's normal sick leave provisions will apply.

Ordinary maternity leave During a period of ordinary maternity leave, an employee is entitled to the benefit of the terms and conditions of employment which would have applied if she had not been absent, save for those relating to remuneration.

In addition, she will be bound by all obligations arising under her terms and conditions other than those which are inconsistent with the fact she is not working.

She is entitled to return to the job in which she was employed during her absence; she has the right to return with her seniority, pension rights, etcetera, as they would have been if she had not been absent and on terms and conditions no less favourable than those which would have applied if she had not been absent.

Additional maternity leaveUnless otherwise agreed, during a period of additional maternity leave an employee is entitled to the benefit of her employer's implied obligation to her of trust and confidence, and any contractual terms relating to notice of termination; compensation in the event of redundancy; or disciplinary or grievance procedures.

She will be bound by her obligation to her employer of good faith and any terms and conditions relating to notice of termination; the disclosure of confidential information; the acceptance of gifts or other benefits; and her participation in any other business.An employee is entitled to return to the same job on the same terms and conditions unless it is not reasonably practicable for her to do so.

If not reasonably practicable, she is entitled to return to a suitable alternative job which is appropriate in the circumstances.

She is entitled to return with her seniority, pension rights, etcetera, as they would have been if the period of her employment prior to her additional maternity leave period were continuous with her employment following her return to work.

RedundancyIf during an employee's maternity leave it is not practicable for her to return to her old job by reason of redundancy, then before her existing contract terminates, she must be offered any suitable available vacancy.

The work must be suitable for her and appropriate in the circumstances, and the provisions of the contract must not be substantially less favourable to her as regards capacity, place and terms of employment.

Detriment and unfair dismissalAn employee is entitled not to be subjected to any detriment by any act, or any deliberate failure to act, by her employer on the grounds, among other things, that she:X is pregnant or has given birth to a child;X took, or availed herself of the benefits of, ordinary maternity leave; orX took additional maternity leave.An employee will also be considered to be automatically unfairly dismissed if the reason for the dismissal related, among other things, to any of the above grounds.

However, an employee will not be considered to be unfairly dismissed where her employer has five or fewer employees and it is not reasonably practicable to offer either her old job or a suitable alternative or where it is not practicable for her employer to offer her job back, and she unreasonably refuses a suitable alternative job with an associated employer.

Contractual rights Where an employee is entitled to maternity leave and also to a contractual right which corresponds to that right she may not exercise the two rights separately but may take advantage of whichever is the more favourable.Liz Buchan is a partner at City law firm Watson Farley & Williams and a member of the Law Society's employment law committee