Do you know your way around educational employment law? Does your school’s pay and remuneration package meet or exceed minimum standards? Tamara Ludlow gives a legal overview of essential information for both leadership teams and staff

One of the defining features of the last 11 years of New Labour government has been its apparent commitment to, and promotion of, measures designed to encourage a work-life balance and to facilitate what is termed a family friendly working environment.

‘Good’ employers, therefore, have taken the view that the remuneration and benefits package should in some way exceed the statutory minimum requirements in terms of leave and pay.

Traditionally, the Burgundy Book scheme has provided superior entitlements to the statutory schemes. Recent improvements to statutory rights, however, mean that this is no longer the case, and in any event not all staff in the education sector have the Burgundy Book scheme incorporated into their employment contracts.

This article gives an overview of statutory leave and pay entitlements, to help employers meet minimum standards. Where provision exceeds minimum standards this should provide a tool by which to judge the value of the existing remuneration and benefits package.

Annual leave

Employers’ obligations to provide paid annual leave can be found in the Working Time Regulations 1998 (as amended). The WTR leave entitlements extend to those who are ‘workers’, a wider category than that of ‘employee’. ‘Worker’ includes most agency workers, short-term casual workers, and some freelancers, but not the self-employed.

The current statutory minimum entitlement is 4.8 weeks per year (24 working days if you work a five-day week). This will rise to 5.6 weeks (or 28 days for a 5 day week) on 1 April 2009. Pay is at the normal rate and entitlement is to be pro-rated for those working part time.

Practical effect of WTR
The entitlement to paid annual leave under the WTR has little practical impact on teaching staff. The contractual holiday entitlement afforded to most staff in the education sector is usually expressed to include the statutory entitlements.

Some support staff, however, do work during normal school closures and may be reliant on the statutory provisions.

Employers must remember that statutory paid annual leave entitlement accrues during maternity leave, and there may be situations where the accrued annual entitlement cannot be met during the remaining school closure periods.

In such circumstances, the staff member can take this leave during the school term, and the employer must allow her to take the leave before the end of the leave year, subject to proper notification and  other operational considerations.

Sick leave and sick pay

Sick leave does not attract any discretionary considerations on the part of the employer. The discretionary element is apparent in how the sick leave is administered
(ie notification and evidence) and in the amount of sick pay and the length of time for which it is payable.

Statutory Sick Pay (SSP) is payable to employees. The current standard rate is £75.40 per week, and this is likely to increase from 6 April 2009. There is no obligation on an employer to pay any more than SSP to employees who are on sick leave.

In practice many employers make enhanced sick pay payments. The Burgundy Book scheme gives generous and lengthy sick leave payments, which for many in the education sector amount to absolute (not discretionary) entitlements.SSP is payable on the fourth day of illness (such days to include non-working days such as weekends and bank holidays). If there is no contractual entitlement to sick pay it is legal not to make any payment of sick pay for the first three days of illness.

Employers need not pay SSP for periods where an employee has failed to notify the employer within seven days of becoming sick.

Employers cannot require formal evidence of sickness (ie a GP’s note) within the first seven days of sickness (although it is common for employers to require self-certification where a GP note is not provided).

Time off for ante-natal care

Pregnant employees have a right to paid time off for ante-natal care regardless of hours worked or length of service.

Government guidance indicates that the leave should not be restricted to employees attending medical examinations and can include relaxation and parentcraft classes, provided these are advised by a medical practitioner, midwife or health visitor.

An employee is entitled to her normal hourly rate during the period of time off for ante-natal care.

Maternity leave and pay

Recent changes to the legislation (Maternity and Parental Leave Regulations 1999 as amended by the Work and Families Act 2006) mean that all employees qualify for statutory maternity leave of one calendar year, regardless of length of service.

The previous distinction of ordinary maternity leave (OML) and additional maternity leave (AML) remains, as the employer’s obligations under the employment contract differ during those periods. AML follows immediately on from OML and there must be no gap between the two.

  • During OML (the first 26 weeks of the statutory maternity leave period) an employee has a right to benefit from terms and conditions that would have applied to her had she been at work, except for the terms providing for her wages. All contractual benefits (such as annual leave and pensions) will continue during OML.
  • During AML (weeks 27 to 52 of the statutory maternity leave period), an employee is entitled to the benefit of a more limited range of terms and conditions than under OML, which includes the employer’s duty to preserve trust and confidence, participation in the organisation’s disciplinary and grievance procedures, terms relating to notice of termination by the employer and terms relating to contractual redundancy.

Changes are afoot for employees with an expected week of childbirth from 5 October 2008. The Government has confirmed that women whose babies are due on or after 5 October 2008 will be entitled to the same terms during AML as during OML.

Statutory maternity pay
Statutory Maternity Pay (SMP) is payable for the first 39 weeks of the statutory maternity leave period, or less if the employee returns to work before the expiry of the 39-week period.

SMP is payable at two rates. The earnings-related rate is payable for the first six weeks. This is 90 per cent of the employee’s normal weekly earnings (the weekly average of the employee’s total gross earnings from the employer and any associated employers during a particular reference period). The remaining 33 weeks are payable at the prescribed rate or the earnings-related rate, whichever is lower. The prescribed rate is £117.18 per week.

Keeping in touch days
Employees may, by agreement with their employer, do up to 10 days’ work under their contract during the statutory maternity leave period. These are known as ‘keeping in touch’ or KIT days. Such days are different to the reasonable contact that employers and employees may make with one another during the maternity leave period. During the KIT days employees can carry out work for the employer, for which they will be paid.

Maternity allowance
For those employees not eligible for SMP, and for some self-employed individuals, there may be a Maternity Allowance (MA) payment. MA is paid at a standard weekly rate of £117.18 or 90 per cent of the average gross weekly earnings (before tax), whichever is the smaller and is paid for a maximum of 39 weeks.

Paternity leave and pay

The entitlement is for employees and is for two weeks only, payable at the prescribed rate of SMP.

To be entitled the employee must:

  • have completed 26 weeks of continuous service ending with the 15th week before the EWC and
  • be the biological father of the child or be married/partnered (including civil partnerships) to the child’s mother
  • have, or expect to have, responsibility for the upbringing of the child

Paternity leave must normally be completed within 56 days of birth and must be taken to care for and support the mother. Paternity leave must be taken as a one-week or two-week block. If an employee takes two  weeks, they must be taken consecutively.

Expected legislation, Additional Paternity Leave and Pay, will entitle employed fathers to a new right of up to 26 weeks Additional Paternity Leave, some of which could be paid, if the mother returns to work.

Adoption leave and pay

Adoption leave and pay may allow one member of an adoptive couple to take paid time off work when the adopted child starts to live with them. Paternity leave and pay may be available for the other member of the couple, or an adopter’s partner.

Eligible employees who are adopting are entitled to 52 weeks’ adoption leave.

This is made up of 26 weeks’ ordinary adoption leave (OAL) and 26 weeks’ additional adoption leave (AAL). AAL follows immediately on from OAL; there must be no gap between the two.

During adoption leave most employees will be eligible for Statutory Adoption Pay (SAP) of up to 39 weeks from their employer. The rate of SAP is the lesser of the currently prescribed SMP rate (£117.18) or 90 per cent of their average weekly earnings.

Parental leave

Parental leave is unpaid. Employees with one year’s service who are the mother, father or who have legal parental responsibility for a child are entitled to take parental leave, being up to 13 weeks’ leave for each child until the relevant child’s fifth birthday.

In the case of disabled children the entitlement to parental leave increases to 18 weeks and can be taken up until the child’s 18th birthday. The leave must be taken in blocks of at least one week and can only be taken for the purpose of caring for the child.

Statutory annual leave entitlement remains unaffected during a period of parental leave and will continue to accrue. Whilst there is no entitlement to wages during parental leave, an employee benefits from the employer’s duty of trust and confidence, and any contract terms relating to notice periods, any compensation if the employee is made redundant and the organisation’s disciplinary or grievance procedures.

Emergency leave

This is also known as time off for dependants. It is a right given to employees, regardless of length of service, to take time off work to deal with an emergency involving a dependant (including death and funeral arrangements). There is no entitlement to pay.

Government guidance says that dependants includes spouses or partners, children or parents, someone living with the employee as part of the family or someone relying solely on the employee for help (for example, an elderly neighbour).

This leave does not cover situations where employees know beforehand that s/he will need to take leave — s/he could take annual leave instead, although for teachers this is difficult, given the fixed annual leave periods.

An employee is entitled to take such emergency leave as is required to deal with the immediate needs of the dependant and to put in place other arrangements for care.

Tamara Ludlow is a solicitor at Finers Stephens Innocent

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