Proposed changes to family-friendly rights & rights of carers

A Law Centre (NI) response

February 2006

Both the Department of Trade and Industry (DTI) and the Department for Employment and Learning (DEL) have consulted on changes to family-related leave and extending flexible working legislation to carers and children over six. 

The DTI is consulting on draft regulations on the proposed changes which will be introduced in Britain. These are available on the internet at www.dti.gov.uk/er/work_families_regs_jan2006.pdf.  The closing date for consultation is 18 April 2006.

DEL has indicated in its response to initial consultation, which can be accessed on the internet at www.delni.gov.uk/consultDebate/files/Work_and_Families_Consultation_Response_Nov_05.pdf that similar changes will be implemented in Northern Ireland from 1 April 2007.

The measures will include:

n Changes to entitlement to additional maternity leave

From April 2007, all women who qualify for Ordinary Maternity Leave (OML) will also qualify for Additional Maternity Leave (AML). AML will therefore be a right from day one of employment rather than a right available only to women who have completed six months’ service with their employer into the 15th week before the week their baby is due. All employed women, regardless of length of service therefore, will have the right to 12 months’ leave.

However, the existing distinctions in contractual rights and rights of return between the first (OML) and second (AML) six months of leave will be left untouched. Therefore, mothers taking a period of maternity leave up to 26 weeks will continue to be able to return to the same job. Those who return after 26 weeks of leave will likewise continue to be entitled to return to the same job, unless it is not reasonably practicable, in which case a similar job on terms and conditions which are no less favourable must be made available to them.

Likewise there are no plans at present to change the length of service criteria, whereby mothers can claim Statutory Maternity Pay (SMP) only after completing a period of service with their employer.

n An extension of length of maternity pay

SMP and Maternity Allowance (MA) will be extended from six to nine months (39 weeks) from April 2007, with the aim of extending to a year by the end of the current Parliament (including extending eligibility for additional maternity leave);

Other proposed changes are:

1. Extension of the notice period for early return from maternity leave from 28 days to 8 weeks;

2. Introduction of notice where a mother who has communicated an intention to come back to work early changes her mind.  A period of notice of 8 weeks, before the earlier date of return, will apply;

3. Clarification of the law that the employer may make reasonable contact with an employee on maternity leave, supplemented by clear guidance setting out the circumstances in which it is reasonable for contact to be made;

4.The introduction of “keeping in touch” days.  This will enable women and adopters to work for a limited number of days during their maternity pay or allowance or adoption pay period without losing payments for that week, or without their leave coming to an end prematurely.  Individual employers and employees will be free to agree such details between themselves.  There will be no right for an employer to demand that an employee does such work, or for an employee to have such work offered to her. Employees will be protected from being subjected to a detriment or dismissed for undertaking, considering undertaking, and not undertaking, any such work;

5.Removal of the small-employer exemption which currently enables an employer with five or fewer employees to escape a finding of automatic unfair dismissal if it was not reasonably practicable to allow a mother or adopter to return to their job after additional maternity or adoption leave;

6.Enabling SMP and MA periods to start on any day of the week in alignment with the current position relating to maternity leave rather than as at present where SMP begins on the Sunday after leave starts, even though maternity leave can start on any day of the week;

7. Fathers will have a right to a maximum of 6 months’ unpaid additional paternity leave (APL), if the mother returns to work before maternity leave ends.  There will be an entitlement to paternity pay at the flat rate for this period of APL but only if the mother returns to work before taking her full entitlement to SMP and MA;

8. Flexible working legislation will be extended to carers of adults. “Caring” will not be defined in legislation but will be dealt with in guidance.  “Carers” will include employees caring for an adult who they are married to, partners with or civil partners of as well as certain relatives and someone living at the same address as the carer.

Consultation is ongoing as to whether flexible working legislation will be extended to parents of children over six.