Maternity – the new rules

Under the previous law, only employees who had the relevant period of qualifying service (26 weeks' employment by the beginning of the 14th week before the expected week of childbirth) were eligible to take 26 weeks' additional maternity leave (AML), but everyone qualified for 26 weeks' ordinary maternity leave (OML). Under the new rules, all pregnant women qualify for both OML and AML regardless of length of service, giving them an automatic entitlement to a year off work. While at first glance this may seem to be yet another burden for employers, the reality is that the vast majority of employees already qualified for AML anyway, because of their length of service. Not only that, it is also often easier for employers to obtain maternity cover where the absence is likely to be a year rather than the more limited six months.

Statutory maternity pay (SMP) is also being increased from a maximum of 26 weeks to 39 weeks, but since most, if not all, of SMP payments can be claimed back from the Government – small employers can claim back all of it plus an extra

4.5% in compensation, and large employers can claim back 92% –

the financial impact of this should not be significant.

Returning to work

Previously, if an employee wanted to return to work early from maternity leave, she was required to give 28 days' prior notice. However, under the new rules, the employee must give at least eight weeks' notice of her proposed date of early return. This is very good news for employers, because it means they should be able to plan for the employee's return better, and it gives them longer to deal with terminating the employment of any temporary maternity leave cover.

Keeping in touch days

As the law previously stood, if an employee did any work at all for her employer during her maternity leave (even if it was just a couple of hours), she would forfeit her SMP payment for the entire week. This did not exactly create much of an incentive for the employee to attend training, team meetings, appraisals, and so on, during her maternity leave. The Government has at last recognised the importance of the employer and employee keeping in touch during maternity leave, and now the employee can agree to work for up to a maximum of 10 days during her OML or AML without loss of a week's SMP and without risk of the work bringing her leave to an end.

'Work' in this context can include work, training or any other activity undertaken to assist the employee in keeping in touch with the workplace. However, employers cannot force staff to work in these circumstances and neither can the employee demand to work. Any work must be by agreement between the parties and the amount to be paid is also a matter for agreement.

Reasonable contact

There is also now a statutory provision enabling reasonable contact to be made between employer and employee during maternity leave. This may be to discuss the employee's plans for return to work, or simply to update her on important work developments. Previously, it was not clear the extent to which the employer could contact the employee during her maternity leave, so it would often be the case that the employee would be forgotten about until she turned up for work again. This new provision means that the employee may be out of sight during her maternity leave, but should not be out of mind.

Overall, the new rules probably spell good news for both employers and employees, but they do represent yet more detailed employment law provisions for employers to get to grips with, not an easy task where there is no bespoke HR department. With employment law changing at a rapid pace, it is no real surprise that many smaller businesses are struggling to keep up with compliance.

Claire Birkinshaw is legal information manager, Abbey Protection Group Limited, www.abbeylegal.com