FAMILY FRIENDLY POLICIES

This government has introduced a range of family friendly polices and increased the provision of other policies such as maternity leave and pay. The following provides a brief overview of the main points that you should be aware of as employers.

MATERNITY LEAVE AND PAY

All pregnant employees are entitled to 52 weeks’ maternity leave, irrespective of how long they have worked for you or how many hours they work per week. This is made up of 26 weeks’ ordinary maternity leave (OML) and 26 weeks’ additional maternity leave (AML).

To apply for ordinary maternity leave, a woman must tell you at least 15 weeks before the baby is due (if possible):

• that she is pregnant
• the date when the baby is due (you can ask to see evidence of this such as a medical certificate, MAT B1 form)
• the date when she intends to start her maternity leave.

If the woman subsequently decides that she wants to delay the start of her OML, she needs to tell you 28 days before the original date. If she wants to bring it forward, she needs to tell you 28 days before the proposed new start date, if that is practical.

You then have to write to her within 28 days telling her when she is expected to return, based on the assumption that she will be off for the full 52 weeks. Women have to give eight weeks’ notice if they want to change the date on which they want to return from maternity leave. You can also make "reasonable contact" with your employees while they are on leave.

During OML, a woman is entitled to all the same terms and conditions (apart from the right to be paid). That includes paid annual leave, both contractual and statutory under the Working Time Regulations 1998.

Although the employee’s contract of employment continues during AML, women are only entitled to a limited number of terms and conditions, such as statutory holiday rights. You do not, therefore, have to pay most benefits such as pay and bonuses during AML unless they relate to a period before the maternity leave started. However, it is important to note that women with a due date after 5 October 2008 will be entitled to the same terms and conditions of employment during AML as they do in relation to OML.

Women do not have to give you any notice if they intend to return to work after the end of their full maternity leave, simply because it is assumed that that is what they will do. If a woman does not wish to return, she must hand in her notice in the normal way before the end of her maternity leave period. If a woman wants to return before the end of her full leave period, she has to tell you at least eight weeks beforehand of the date on which she intends to come back.

After OML a woman is entitled to return to the same job that she was doing before she left, on terms that are no less favourable. Likewise, someone returning from AML is entitled to return to the job they were doing before they went on leave, on terms that are no less favourable, unless it is not reasonably practical for you to allow her to return to her old job. You would then have to offer an alternative job that was suitable and appropriate in the circumstances.

• be pregnant at the 11th week before the expected week of childbirth
• be employed by you for 26 weeks up to and including the 15th week before the expected week of childbirth
• have average weekly earnings during an eight week reference period ending with the qualifying week that are high enough to make her eligible to pay class 1 National Insurance Contributions (NICs)
• have given you 28 days’ notice as to when you are liable to start paying SMP (or less than that if it is not reasonably practical to give 28 days’ notice)
• have produced a medical certificate from a doctor or midwife, which gives the date when she is due to give birth
• have stopped work

SMP is paid at a rate of 90% of average weekly earnings for the first six weeks of OML, followed by a flat rate which changes every April for the remaining 33 weeks. Current rates can be found on the Department for Work and Pensions website.

PATERNITY LEAVE AND PAY

Paternity leave enables a father or partner to take two weeks’ paid leave on or around the time of birth of a baby, or adoption of a child, to enable them to be with the mother and child.

To receive statutory paternity pay (SPP), the employee must have worked for you for six months and have been earning more than the lower earnings limit for National Insurance in the eight weeks ending with the 15th week before the baby is due (or the week in which the adopter is notified of being matched)

The rates are the same as those for SMP and can be found on the Department for Work and Pensions website.

ADOPTION LEAVE AND PAY

Statutory adoption leave largely mirrors maternity rights, with ordinary adoption leave (OAL) reflecting ordinary maternity leave, and additional adoption leave (AAL) mirroring additional maternity leave. However, it is only available to employees who have worked for you for at least six months.

Statutory Adoption Pay (SAP) is payable throughout the OAL period. There is no equivalent to the earnings related maternity pay of 90% pay for six weeks. Instead SAP is paid at a flat rate, which changes every year, for the whole 39 weeks. Current rates can be found on the Department for Work and Pensions website.

PARENTAL LEAVE

Parents who have worked for you for a year can take unpaid leave of up to 13 weeks per child (or 18 weeks for children entitled to disability living allowance) in order to care for that child. The right lasts until the child is five or 18 if the child is entitled to disability living allowance. It is also available for adopted children.

TIME OFF FOR DEPENDANTS

Employees have the right to take time off for looking after a dependant. There is no need for any qualifying period of service. The legislation does not state how much time off an employee can take - it should just be "reasonable".

A dependant is defined as a spouse, partner, child, parent or person in the same household as the employee (except someone who is a tenant or lodger).

The employee is entitled to the unpaid time off during working hours in order to "take action which is necessary":

• when a dependant falls ill, gives birth or is injured or assaulted
• to make arrangements for a dependant who is ill or injured
• when a dependant dies
• because of the unexpected disruption or termination of arrangements for the care of a dependant
• or to deal with an incident which involves a child of the employee and which occurs unexpectedly

FLEXIBLE WORKING RIGHTS

An employee with a child under six (or 18 if disabled) or someone who cares for an adult and who has worked for you for 26 weeks can ask you to change their terms and conditions of service so that they can care for that dependant. The change can relate to the hours they have to work, the times they work, or the location in which they work.

To do so, however, they have to be the mother, father, adopter, guardian or foster parent of the child (or be married to or be the partner of that person). Partners of same-sex couples are included.

If you agree to the application, you just have to confirm it in writing and specify the date when the change will start. If you don’t agree, you have to meet with your employee within 28 days of their application and then tell them your decision within 14 days of that meeting. The employee has the right of appeal within 14 days.

You can only rely on one of the following reasons to reject the application:

• the burden of additional costs
• a detrimental impact on your ability to meet customer demand
• an inability to reorganise the work amongst existing staff, or recruit additional staff
• a detrimental impact on quality or performance
• insufficient work during the hours when the employee intends to work
• planned structural changes.

PITTER PATTER

Section 99 of the Employment Rights Act 1996 (ERA) states that it is automatically unfair to dismiss an employee for taking statutory paternity leave if the reason or principal reason is "connected with" the leave. In Atkins v Coyle Personnel plc the Employment Appeal Tribunal (EAT) said that the reason has to be causally connected to the dismissal and not just associated with it.

What happened?

Mr Atkins arranged with his manager, Mr Stewart, to go on a week’s paternity leave on 6 March 2006. A more senior manager, Mr Edwards, was not told of the arrangement. Mr Atkins e-mailed both of them on 7 March to inform them of the birth of his daughter. Mr Edwards agreed to the paternity leave arrangement, but only if Mr Atkins was always contactable by phone.

Having done some work on both 8 and 9 March for the company, Mr Atkins was asleep when Mr Edwards rang for the first time on 10 March. He then asked a colleague to ring Mr Atkins again in case he lost out on some commission. This prompted an angry e-mail from Mr Atkins. Mr Edwards, however, was also annoyed as he felt he had been trying to do Mr Atkins a favour.

They then had a heated argument during which Mr Edwards told Mr Atkins he was sacked who then brought a claim of automatically unfair dismissal.

The tribunal decided that the reason for his dismissal was nothing to do with the fact that Mr Atkins had taken paternity leave, but because of frustration on the part of Mr Edwards.

Mr Atkins appealed on the basis that the tribunal had misinterpreted section 99, saying that it just required the dismissal to be "connected with" or "associated with" and not "caused by" the leave.

The EAT, however, disagreed. It confirmed that the tribunal had applied the correct test, saying that "connected with" must involve a causal connection between the prohibited reason and the dismissal.

The tribunal was therefore right to decide that the reason or principal reason for dismissal was because Mr Edwards was frustrated and annoyed with Mr Atkins. This had little or nothing to do with the fact that Mr Atkins was on paternity leave.

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UNKNOWN TERM

Employees generally need to know about a contract term for it to have effect. In Department of Work and Pensions v Sutcliffe, however, the Employment Appeal Tribunal (EAT) said that a maternity leave policy was incorporated into the woman’s contract even though she could not access it.

What happened?

Ms Sutcliffe told her employer she was pregnant when she started work in April 2006 and that she wanted to start her leave on 1 August. She then went on sick leave the following month.

She received her written contract in July, which stated that she was entitled to full pay during sick leave minus Maternity Allowance for up to six months in any 12 month period. It also stated that she could find full details of the DWP’s maternity leave policy on the intranet (which she could not access from home). On 1 August her sick pay stopped and she received maternity allowance instead. She claimed unlawful deduction from wages.

The tribunal agreed with her on the basis that her contract entitled her to enjoy "sick absence on full pay less any ... Maternity Allowance received". As Ms Sutcliffe had been signed off sick by her GP for the full period of her maternity leave, then she was entitled to sick pay for that period. This right was not affected by the legislation which excludes the right to pay during maternity leave, as sick pay did not constitute "remuneration."

It also said that the terms of the maternity leave policy were not incorporated into the contract because Ms Sutcliffe was unable to access it after she received her contract. However, even if it did apply, it said that the policy provided for the payment of sick pay in the event of sickness during maternity leave.

The EAT said that if the tribunal was right that the maternity leave policy was not incorporated into her contract, then Ms Sutcliffe was dependent on her statutory rights. That was fatal to her as the relevant sections include sick pay as "remuneration".

In any event, it decided that the maternity leave policy was incorporated into the contract of employment "by virtue of the notification in the contract document ... of the full details of her Conditions of Service on the intranet site". Just because Ms Sutcliffe did not have access to the intranet during her absence did not mean that the policy was not incorporated. The DWP had done what it could to bring it to her attention.

IN BRIEF

The European Court of Justice has decided in the case of Coleman v Attridge Law that disability anti-discrimination legislation covers able-bodied employees "by association".

Sharon Coleman, a legal secretary with a disabled son born in 2002, claimed direct discrimination and harassment by her employer, as a result of which she felt forced to volunteer for redundancy in 2005. She claimed that her employer refused to allow her to return to her previous job when she came back from maternity leave, refused to allow her to work flexibly; and subjected her to abusive and insulting comments about her child.

The tribunal referred the matter to the Court of Justice to ask whether the directive on equal treatment covered not just disabled employees, but also employees treated less favourably because someone for whom they cared was disabled.

And the ECJ said that it should be interpreted as protecting employees who, although not themselves disabled, nevertheless suffered discrimination or harassment because they were associated with a disabled person. It also said the same with regard to harassment.

The decision has potential ramifications for employees bringing claims under other discrimination legislation, such as sexual orientation, religion and age.

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