Maternity leave (Clause 8 and Schedule 3)

The legislation will replace the existing maternity leave provisions by creating new sections 71 - 75 of the Employment Rights Act 1996. The aim is to simplify the existing complicated and confusing situation.

The new provisions provide three periods of maternity leave: ordinary maternity leave of 18 weeks; at least 2 weeks compulsory maternity leave; and additional maternity leave.

Ordinary maternity leave of not less than 18 weeks will apply to all employees regardless of length of service. The Government will have power to make Regulations on any qualifying conditions, for example on giving notice and on choosing when maternity leave starts. During this period the employee will be entitled to receive normal contractual and related benefits, except remuneration, and be bound by contractual obligations.

Compulsory maternity leave requires, as a health and safety measure, that women must take a minimum of two weeks off work around the birth. It will be a criminal offence for an employer to allow a woman to work during that period.

Additional maternity leave will be granted to employees who satisfy prescribed conditions, probably involving a qualifying period of one year's service rather than the current two years. The period will follow on from the ordinary maternity leave period of 18 weeks and end within 29 weeks of the birth of the baby. The contract will continue throughout this period, including rights and obligations excluding remuneration. The period of leave will count as continuous service for statutory purposes.

The Government intends the Regulations to simplify the procedures on notification of pregnancy and the wish to return and ensure that a failure to comply with the strict notification requirements does not result in a complete loss of rights.

Regulations will provide for the kind of job to which the woman is entitled to return and the terms and conditions to which she will be entitled when she does. It is likely that the employer will be able to offer suitable alternative work where it is not reasonably practicable to take the woman back in her old job. Regulations will also provide for the position where a woman is dismissed for redundancy or other reason unconnected to her pregnancy during maternity leave.

Parental leave (Clause 8 and Schedule 3)

Schedule 3 introduces new sections 76 - 81 of the Employment Rights Act to implement the provisions of the Parental Leave Directive, which itself enacts the Framework Agreement on Parental Leave agreed between unions and employers at European level. The provisions give the Government power to make Regulations to implement the legislation, so some of the detail is not yet known.

The right is to parental leave for each parent of at least three months in total for each child, although (unlike the Directive) the Government appears to contemplate that the entitlement may be transferred between parents in exceptional circumstances. There is no provision for paid leave.

It is likely that Regulations will require a period of one year's service before qualifying 
for the right. They will specify the maximum age of a child in respect of whom parental leave may be taken, which is likely to be less than the 8 year maximum in the Directive. Special provisions will be made for adoptive parents.

The leave must be for the purpose of caring for a child and this will be defined by Regulations. The Regulations will specify whether leave must be taken as a single period of absence in some or all cases and the circumstances in which employers may postpone the leave.

The rights during parental leave will be similar to those during additional maternity leave, so that the contract of employment continues in existence and all terms except remuneration continue.

Regulations will also provide for circumstances where there is a redundancy or dismissal during parental leave for circumstances not connected to the leave. Regulations may also provide for the option of part-time working over a longer period rather than taking parental leave and will provide for requirements for taking parental leave, such as notice by employees, responses by employers etc.

Employees will have a right to complain to an Employment Tribunal if an employer unreasonably postpones leave or attempts to prevent the employee from taking leave and there is protection against detriment or dismissal for exercising the right.

Time off for domestic incidents (Clause 9 and Schedule 3)

This will insert new sections 57A-57C in the Employment Rights Act 1996 to implement the remainder of the Parental Leave Directive - that part which relates to time off for "urgent family reasons".

This is described as a right to time off for domestic incidents. These are incidents which occur in the home of the employee or affect a member of her/his family or someone who relies on the employee for assistance. The right is to take reasonable time off (unpaid), where it is reasonable to do so.

Regulations will set out the details on deciding what is reasonable, imposing limits on time off, provisions for notice and the consequence of failing to give notice or failing to respond to an employee's notice.

Examples of the type of situation envisaged are given in the Explanatory Notes. These 
include: sudden illness or accident; death; a crisis requiring the employee's immediate attendance - for example a serious incident at a child's school; making arrangements for looking after children due to the sudden illness or incapacity of the normal carer; or a domestic crisis such as unavoidable severe damage or disruption to property, such as flood, fire or burglary.

The remedy is an application to an Employment Tribunal where the employer has failed to permit time off and there is protection against dismissal or detriment.