Maternity Regulations – Changes in 2008

Questions and Answers

When do these changes take effect?

The changes came into force on 6 April 2008, but the provisions relating to benefits and terms & conditions during Additional Maternity Leave apply to employees with an expected week of childbirth (EWC) that begins on or after 5 October 2008.

What are the changes?

Terms and Conditions:

An employee has the right to the terms and conditions that would have applied had she been at work during Ordinary Maternity Leave (OML) (excluding those relating to remuneration) – this is unchanged.

The new regulations affect contractual entitlements during Additional Maternity Leave (AML). Employees with an EWC that begins on or after 5 October 2008 will be able to enforce their full range of benefits, apart from remuneration, during AML. This means the same terms will apply during OML and AML – there will be no difference in relation to terms and conditions between the two periods of leave.

What does this mean we have to do?

This means that an employer must provide all contractual or discretionary benefits, apart from remuneration to a woman for the duration of her maternity leave. For example, life assurance, private health insurance, health club membership and participation in a share scheme must continue during this period.

We provide a company car to employees – how will the changes affect this?

It depends on how the employee is permitted to use the car and what is written in their terms and conditions about it. If the use is solely for business purposes then it is not a benefit and there is no need for it to be available during OML or AML. If the employee uses it for their personal use (however limited), it would be classed as a benefit and the car will have to be provided throughout the full maternity leave period.

What about accrual of holiday during maternity leave?

Where the EWC begins on or after 5 October 2008, contractual holiday will accrue during AML as well as OML in addition to statutory holiday. If this exceeds the statutory minimum the greater amount must accrue.

We are due to pay an employee a bonus but she will have taken maternity leave after 5^th October 2008 – what is the situation?

Bonus payments can be reduced pro-rata, to take account of time spent on maternity leave in some circumstances.

However, from 5^th October 2008 the compulsory maternity leave period (the two weeks immediately following the birth) must be taken into account for bonus purposes. This can be a complicated situation and will depend on the wording of your contracts among other things – we recommend you contact Louise for the most up to date advice on 07949 552403 or email her at louise@indigohr.com

Discrimination

There are two key changes relating to maternity rights.

Women will be able to bring sex discrimination claims in relation to non-remuneration benefits during AML as well as during OML. Therefore the benefits provided during AML must be the same as those provided during OML.

In relation to bringing sex discrimination claims, it is no longer necessary for there to be a comparator¹, for a woman to bring a claim of pregnancy- or maternity-related sex discrimination. She must simply demonstrate, with evidence, less favourable treatment on the grounds of pregnancy or exercising her right to take maternity leave.

What are the risks?

If an employer does not comply with the regulations there are a number potential claims that an employee could bring:

unlawful deductions from wages (e.g. in respect of unpaid bonuses and accrued annual leave due if the contract ends);
detrimental treatment under the Employment Rights Act 1996 and the 1999 regulations;
automatic unfair dismissal if a serious breach of contract results in a constructive dismissal;
sex discrimination under the 1975 Act; and
damages for breach of contract.

What should we do to avoid problems?

Maternity policies should be reviewed and update.
Bonus schemes may also need to be amended to ensure that women on maternity leave will be given the benefit of the compulsory maternity leave period in the calculation of discretionary bonuses.

Contact Indigo HR Consulting to take action on your behalf – louise@indigohr.com or 07949 552403

Disclaimer – Indigo HR provides these details as help and support however, we do not assume legal responsibility for the accuracy of any particular statement. If you have specific views or situations which you wish to discuss we would be pleased to assist you.

Correct at July 2008

1 In most discrimination claims, an employee needs to show that he or she was treated less favourably than another person in a similar position/situation. The comparator may be real or hypothetical. Previously, in discrimination cases relating to pregnancy or maternity leave, an employee had to show that she was treated less favourably than she would have been treated had she not become pregnant or taken maternity leave.

Following the changes to the 1975 Act there is no longer a need for any form of comparator. A woman must show only that she was treated less favourably on the ground of her pregnancy, or on the ground that she took maternity leave.