Maternity and Parental Leave Regulations 1999

With the arrival of the Maternity and Parental Leave etc Regulations 1999, one of the main planks of the Government's much heralded family friendly policy came into effect with the introduction of (unpaid) parental leave for employees, male or female, and the extension and simplification of the existing maternity provisions.

The Regulations build on the broad provisions of Section 7 and Schedule 4 of the Employment Relations Act 1999, and in relation to the parental leave sections, purport to implement the EC Framework Agreement on Parental Leave agreed between unions and employers at European level back in 1996.

The parental leave provisions are already in effect for those employees whose babies were born on or after 15th December 1999. The maternity provisions will take effect in relation to employees whose babies are due on or after 30th April 2000.

The rules on parental leave provide for every employee, with over one year's continuous service, who has or acquires parental responsibility for a child whose date of birth is on or after 15th December 1999, to take up to 13 weeks unpaid leave for the purpose of caring for that child. The right continues up until the child is aged five, except for children who are entitled to disability living allowance where the right continues until the age of 18.

There are specific rules for adopted children, where the right to take parental leave is available during the five year period following the placement for adoption, up until the child is aged 18.

The 13 week entitlement may be broken up into short periods - no minimum period is prescribed - or may be taken in one block provided this is negotiated in collective or workforce agreements.

During the period of parental leave, the employee's contract still subsists, but all contractual terms are suspended. This is subject only to the employer's ongoing implied obligation of trust and confidence, and any contractual terms relating to notice of termination, disciplinary and grievance procedures, and redundancy compensation. But where there are Christmas and other types of bonuses there are equal pay implications (see Lewen v Denda elsewhere of this issue of LELR).

On return from parental leave, if an employee has taken no more than four weeks leave, they are entitled to return to their old job. Any more than four weeks and they are only entitled to a job which is "suitable...and appropriate" in the circumstances, if the employer can show that it is not reasonably practicable for them to return to the same job.

Once the employee has returned, all seniority and pension rights continue as before, though they will not have accrued during the actual period of parental leave itself. 
The Regulations envisage, and indeed encourage, employers and unions to negotiate and agree collective agreements specifically dealing with the mechanics of how and when parental leave may be taken, providing the agreements are no less favourable than the statutory minimum. If no agreement is negotiated, then Schedule 2 of the Regulations sets out "default provisions" which will then automatically apply.

The default provisions lay down procedures for the exercise of parental leave, such as the requirement for employees to comply with a request from the employer to produce evidence as to the child's date of birth, or the employee's parental responsibility, or the giving or 21 days' notice of taking leave. The default provisions also allow the employer to postpone the period of parental leave for up to six months if he considers that the operation of his business will be "unduly disrupted". Further, the length of parental leave is prescribed, with a minimum period of one week being allowed at any one time, and a maximum four week period in any one year.

The maternity provisions of the Regulations are intended to simplify and clarify the existing set of maternity rights, though whether they will achieve this stated aim is open to question.

The current basic structure of automatic and unqualified ordinary maternity leave, followed by up to 29 weeks additional maternity leave, is preserved. However, ordinary maternity leave, currently 14 weeks long, will be extended to 18 weeks. Additional maternity leave, currently available to employees with two years' continuous service, will now be available to all employees with one year's service. A failure on the part of the employee to comply with any notification requirement will now not have the effect of jeopardizing the right to return. Instead, the right to return is preserved but any failure is treated as a disciplinary matter.

During ordinary maternity leave, the contract will, as now, subsist, but without the right of the employee to receive wages or salary. After ordinary maternity leave, the employee has the right to return to her old job. During additional maternity leave on the other hand, the status of the contract is exactly the same as during parental leave, namely suspended except for a few restricted obligations, and after additional maternity leave the employee again has same restricted right to return to the same or similar job, as after parental leave.

In line with the equivalent rights under the Employment Rights Act 1999, an employee is protected from detriment or dismissal for exercising their rights both in respect of parental leave and maternity leave.

These new maternity and parental leave provisions represent a tremendous step forward in the development of a family friendly working environment. However, much concern has been expressed at the serious limitations of the Regulations, not least the 15th December 1999 cut off date for parental leave which will not only exclude 3.3 million employees with children aged under five who were born before the 15th December date, but also represents an inadequate implementation of the European Framework Agreement.

The restriction of the new rights to employees only, will also exclude large numbers of casual workers, and the fact that parental leave is unpaid will inevitably have the effect that many employees will be prevented from exercising their rights.

Thompsons have been instructed by the TUC to challenge the cut off date and will report on the progress of the judicial review application in future issues. There are also signs that the Government may be looking at the question of providing some sort of subsidy as part of its next manifesto commitments. Let's hope that the 1999 Regulations are not the end of the story.