New maternity and flexible working rights mean employers must brush up on the law, says Derek Eccleston

The Work and Families Act has now completed its parliamentary stages and received royal assent. Already in effect, it enhances the rights of employees who are pregnant, and whose baby is due on or after 1 April 2007. It also extends the right to request flexible working.

In this article, we will explain how school managers are affected by the new law. Extended rights may seem daunting, but they need not prevent effective workforce management.

Why the changes?

There has been much comment in the media recently about the latest changes to maternity and other ‘family friendly’ rights, as they have become known.

Declining birth rates in this country are of serious concern. The education sector is, of course, directly affected by the number of children being born — because birth rate affects future educational provision.

But the issue extends beyond education to future state pension funding, and to questions over where we are to find future generations of workers: the flood of overseas labour arriving in Britain is partly due to our declining birth rates, which leave us short of available recruits.

It is clear that the UK economy would benefit from maintaining, or even increasing, the birth rate. And that is the dilemma — for more women are at work than ever before. So, on the one hand society and politicians would like us to have more children, whilst on the other, employers are reluctant to give staff time off to raise their families.

Employers bear the brunt But it is the employers who will have to adapt. It is an economic

fact that this country needs to encourage women to balance work and child-rearing.

This fact will not change — and employers must accept it, responding positively when facing questions and requests from staff about work-life balance issues.

New rules on maternity

Extension of paid maternity leave
Paid maternity leave (and adoption leave) is to be extended from 26 to 39 weeks in April. This change will apply to any woman whose expected date of childbirth is on, or after, 1 April 2007 — irrespective of when the baby actually arrives.

So if a teacher is expecting a baby, and the expected week of confinement is 15 April 2007, she will be entitled to these new rights — even if the baby arrives early, and before 1 April.

Conversely, a woman whose expected week of confinement is before 1 April 2007 can have only the ‘old’ rights, even if her baby arrives after 1 April.

The Government has set a goal of increasing the paid element of maternity leave from 39 weeks to 12 months within its current term, probably in 2009.

Adoption pay
For the purposes of adoption pay, the new rules will apply where the child is placed for adoption after 1 April 2007.

Additional paternity leave
There is a new right for mothers to transfer a proportion of their maternity leave and pay to a partner, in the form of additional, paid, paternity leave, although no date is fixed for this right to become effective.

The Government envisages that this would apply only after the mother has taken her first six months of maternity leave. This would mean that the mother could transfer up to three months paid leave if she chooses to return at this point.

Consultations on the (potentially quite complex) details of this scheme, to be known as ‘additional paternity leave’, are still in progress. No firm date has been given for it to become operative.

Qualification for additional maternity leave
The requirement that an employee have six months’ service for entitlement to additional maternity leave will be scrapped — so that all working women will be entitled to six months of ordinary maternity leave, which will be immediately followed by a further six months of additional maternity leave.

Removing the current length-of-service requirement for additional maternity leave will mean that, irrespective of service, all pregnant women will be able to take 12 months’ leave from April 2007.

Adoption leave
The position on adoption leave is not changing, which means that an application to take adoption leave requires the employee to have at least 26 weeks’ service. Both parents may be eligible to take some adoption leave.

Statutory maternity pay
The current position is that statutory maternity pay is available only to a woman who has achieved at least 26 weeks’ qualifying service — and this is not changing.

So although all women will be eligible to take up to a year off, only those with six months’ service will be able to claim statutory maternity pay from their employer.

Returning to work
A woman returning from maternity leave will be required to give eight weeks’ notice (not the current four) if she wishes to return to work from maternity leave earlier than originally planned.

This is better news for the employer, who will have a little longer to plan for her return and to give notice to any maternity cover replacement or agency staff. The employer can waive this if it wishes, and allow the woman to return at shorter notice if it suits organisational needs.

  • All these changes will apply where the expected date of childbirth falls on or after 1 April 2007.
  • Statutory maternity pay can now start on any weekday, to coincide with the start of maternity leave.

Flexible working

Another significant change is the extension to carers of the right to request flexible working (see below for full details). But is the workplace becoming too worker-friendly — at the employer’s expense?

‘Keep-in-touch’: phased return to work

New ‘keep-in-touch days’ are to be introduced. These will mean that a woman can return to her employer and undertake paid employment for a few days without affecting her right to claim statutory maternity pay.

The regulations permit employees to do occasional work during maternity leave without any loss of statutory rights, or causing maternity leave to end prematurely.

Keep-in-touch days will be limited to a maximum of 10 in any one period of maternity or adoption leave.

KIT days are voluntary
Keep-in-touch days are voluntary — the employer cannot insist on a woman coming in to work. Equally, a woman cannot insist that she be allowed to come in.

Keep-in-touch days do not extend the period of maternity or adoption leave.

The employer can pay a woman for occasional days without her losing her statutory maternity pay entitlements. She might, for example, wish to be in school at the start or end of a term, to attend important training sessions or a staff briefing. Keep-in-touch days might also enable a woman to have a phased return to work in the last few weeks of her leave — perhaps to give her a dry run on nursery or childcare arrangements.

Regulations do not specify a notice period for setting up a keep-in-touch arrangement — employer and employee will have to agree this at the relevant time.

Payment for KIT days
The regulations do not make clear what happens to pay on keep-in-touch days, but the logical approach would be to pay normal salary or to make any statutory maternity pay up to the normal salary for the days in question.

Keeping in contact

As a separate point, the regulations also make it clear that employers are entitled to maintain reasonable contact with their employees during maternity leave. What is ‘reasonable’? The key here is common sense: an occasional call from the employer about return to work dates, for example, would be acceptable.

Are employers losing the right to manage staff?

Flexible working rights have caused employers some difficulty — they often feel that they are unable to reject a flexible-working request from women with young children for fear of a discrimination claim.

It must be emphasised that employees only have the right to request flexible working. The employer has the right to refuse — but only after going through the statutory procedure of two meetings, at which the employee can be accompanied.

Who is eligible?

Eligibility for requesting flexible working is set out in a form by the Department of Trade and Industry — see www.dti.gov.uk/employment. The form, a letter from the employee to his or her employer, is as follows:

To the employer

I would like to apply to work a flexible working pattern that is different to my current working pattern under my right provided in law. I confirm I meet each of the eligibility criteria as follows:

  • I have responsibility for the upbringing of either a child under six or a disabled child under 18.
  • I am:
    • the mother, father, adopter, guardian or foster parent of the child; or
    • married to or the partner of the child’s mother, father, adopter, guardian or foster parent
  • I am making this request to help me care for the child.
  • I am making this request no later than two weeks before the child’s sixth birthday or 18th birthday where disabled.
  • I have worked continuously as an employee of the company for the last 26 weeks.
  • I have not made a request to work flexibly under this right during the past 12 months.

How will it affect the employer?

It is also important to note that the person requesting the change to his or her contract is expected to comment on how this will affect the employer.

This is often overlooked but can be an important part of the process. If any changes to the person’s employment terms are agreed, these are effectively permanent unless agreed otherwise.

Requests to work flexibly do not always suit the needs of the business and can be rejected. Care is needed here because if the request is not handled correctly it can lead to a tribunal claim, possibly for sex discrimination.

A rejection must be based on a good business argument and must involve one or more of the following reasons:

Business grounds for refusing a request

  • burden of additional costs
  • detrimental effect on ability to meet customer demand
  • inability to reorganise work among existing staff
  • inability to recruit extra staff
  • detrimental effect on quality
  • detrimental effect on performance
  • lack of work during the periods in which the employee proposes to work
  • planned structural changes

Example: the employment appeal tribunal upheld a tribunal’s decision that a school had not discriminated against a teacher by refusing to allow her to return to work part-time after maternity leave.

The teacher’s additional duties as a form tutor could not be done on a part-time or job-share basis in this particular school at that time.

Flexible working extended to carers

The right to request flexible working is to be extended to those caring for disabled or sick relatives (but not, at least at this stage, those with childcare responsibilities for older but healthy children).

The Government has conducted a consultation exercise on the precise scope of caring responsibilities that would be covered by the change.

Near relative includes: parents, parent-in-law, adult child, adopted adult child, siblings (including in-laws), uncles, aunts or grandparents and step-relatives.

The Department of Trade and Industry estimates that this definition will cover about 80 per cent of carers.

Who is a ‘carer’?
The Government has said that a qualifying carer will be:

Any employee who is, or expects to be, caring for an adult who:

  • is married to, or the partner or civil partner of, the employee, or
  • is a near relative of the employee, or
  • falls into neither category but lives at the same address as the employee

Derek Eccleston heads Employment Law Training Ltd, a consultancy specialising in the provision of practical advice and training on employment matters

Find out more

Family-friendly working — your rights, a useful summary from the Equal Opportunities Commission

General information on work and families law, as well as useful links to the Work and Families Act, is at the Department of Trade and Industry site

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