An overview of the Work and Families Act 2006

The Work and Families Act 2006 introduced a number of changes to maternity, adoption and paternity rights. Although these came into force on 1 October 2006, they only took effect in relation to employees whose baby was due or whose child was expected to be placed for adoption, on or after 1 April 2007.
Jo Seery, a solicitor in Thompsons’ Manchester office, provides an overview of the main provisions of the new Act.

Main changes

The main changes introduced are:

• an entitlement to 52 weeks maternity leave
• an increase in statutory maternity pay to 39 weeks
• the introduction of “keeping in touch” days, which allow an employee on statutory maternity or adoption leave to work for up to 10 days during their leave without any loss of pay
• removal of the small employers exemption so that all employees have a right to return from additional maternity or adoption leave to the same or similar job
• the right to request flexible working for employees with caring responsibilities for adults
• additional paternity leave for employed fathers or partners of the mother and / or an adopter up to a maximum of 26 weeks following the birth or adoption of the child.

Maternity and adoption leave

One of the biggest – and most welcome – changes is that all pregnant women whose baby is due on or after 1 April 2007 are now entitled to 52 weeks maternity leave regardless of their length of service.

However, their rights are not the same throughout their leave. For the first 26 weeks, they are entitled to all their contractual benefits (except for pay), but for the second 26 weeks they are only entitled to “residual” contractual rights. These include entitlements to notice pay, redundancy pay and the statutory dismissal and disciplinary and grievance procedures.

Adoptive parents must have worked for their employer for 26 weeks by the week in which they were notified that they had been matched with a child to qualify for 52 weeks adoption leave.

Extension of notice of return

If an employee wants to return to work early from maternity or adoption leave, they must now give their employer eight weeks notice before the end of their leave.
If they don’t do that, their employer can postpone their return to work by eight weeks, although not if that would take them past the end of their statutory maternity or adoption leave period.

Likewise, if an employee changes their mind about the return date, and wants to come back earlier than the original date, they also have to give eight weeks notice of the date on which they intend to return.

“Keeping in touch” days

The Act also introduces “keeping in touch” days. These allow employees to work for up to ten days for their employer during their leave period without losing pay for that week and without bringing their leave to an end.

The definition of “work” includes training or any activity that allows the employee to keep in touch with her employer.

Both parties have to agree on the work to be done, and employers cannot force employees to work during the statutory maternity or adoption leave period. If someone refuses to work on “keeping in touch” days they have the right not to be subjected to a “detriment” (disadvantage) or to be dismissed for that reason.

There are no specific provisions about whether or not employees should be paid for “keeping in touch” days, but given that they are working under their normal contract, they should be paid the normal contractual rate.

Once the ten “keeping in touch days” have been used up, the employee will lose a week’s pay for any week in which they do work under the contract, even if they only work for a couple of hours or part of that week.

In addition, the changes allow either party to make reasonable contact with each other during the statutory maternity / adoption leave period without the leave period being brought to an end.

Small employer exemption

From 1 April 2007, employers with five or fewer employees are no longer exempt from claims for unfair dismissal connected with pregnancy, childbirth, maternity leave or adoption leave if they fail to allow an employee to return to the same or similar work from additional maternity or adoption leave.

Maternity pay

From 1 April 2007, pregnant women became entitled to 39 weeks paid leave (increased from 26), and the Government has said it intends to extend this still further to 52 weeks by the end of this parliament. Statutory Maternity Pay (SMP) now consists of 90 per cent of average earnings for six weeks, with 33 weeks paid at either the standard rate of £112.75 or 90 per cent of average weekly earnings, whichever is lower.

If an employer awards a pay rise between the 15th week before the baby is due and the end of maternity leave, the employer must pay the extra that is due in terms of SMP. The longer maternity leave period makes it more likely that pay increases will be awarded during it, so women need to keep an eye on any pay negotiations during their statutory maternity leave period.

As well as the amount of maternity pay payable, the way in which statutory maternity pay (SMP) is calculated has also changed. SMP for women whose baby is due on or after 1 April 2007 will start from any day of the week when notice is given to the employer, rather than the Sunday following the day she stopped work. This means that the start of the maternity pay period will now be the same as the start of maternity leave.

If an employee leaves her employment after the 11th week before her baby is due, but before the maternity pay period is due to start, her maternity pay period will start from the day after her employment ends instead of the following Sunday.

If a woman is absent from work for a pregnancy related reason in the last four weeks before the leave is due to start, then the maternity pay period will automatically be triggered.

Paternity leave

The Work and Families Act 2006 introduces a new statutory right to additional paternity leave and pay for employees during the second six months of the 12 months maternity leave period, although these have not yet been introduced.

The Government has indicated that it intends to bring in these changes by the end of this parliament, in addition to the current entitlement of two weeks statutory paternity pay.

The additional paternity leave is essentially a way to share the second period of 26 weeks leave between the mother, father or partner. A father or partner will be entitled to additional paternity pay, which is most likely to be paid at the same rate as the current statutory paternity pay (£112.75 or 90 per cent of average earnings whichever is less). However, this will only be paid if the mother or adopter has not used up all their entitlement to either SMP or statutory adoption pay when they return to work.

Flexible working

Employees with 26 weeks service now also have the right to request flexible working if they have caring responsibilities for adults. To qualify, the employee must either be, or expect to be, caring for a person aged 18 or over who:

• is married to, or is a partner or civil partner of the employee, or
• is a relative of the employee, or
• living at the same address as the employee.

The term “relative” is defined specifically and includes not just immediate family (mother, father, brother, sister) but also step relations, uncles, aunts and grandparents as well as adoptive parents.

Comment

These changes certainly simplify the provisions in relation to maternity and adoption rights, with effect from 1 April 2007, while the provisions relating to paternity and flexible working are subject to further legislation.

Good employers will, however have already started negotiating with trade unions on how to improve flexible work and leave provisions with the aim of better balancing work and family life without the spur of legislation.