Rights of employees on additional maternity or adoption leave

New Regulations come into force in October 2008, which will affect the rights of employees on additional maternity or adoption

August 28, 2008

The Government has recently published the final version of the Maternity and Parental Leave etc. and the Paternity and Adoption Leave (Amendment) Regulations 2008. The Regulations, which came into force on 23 July 2008, affect employees whose expected week of childbirth begins on or after 5 October 2008 or employees whose child is expected to be placed with them for adoption on or after that date.

The Regulations remove the distinction between the rights and obligations of employees during “ordinary” maternity and adoption leave and those during “additional” maternity and adoption leave. However, there remains uncertainty as to the position regarding the continuation of pension benefits throughout periods of ordinary and additional maternity and adoption leave.

Current position

Employees are entitled to 26 weeks ordinary maternity and adoption leave, and may also take a further 26 weeks additional maternity and adoption leave. Currently, employees on ordinary maternity or adoption leave have a statutory right to benefit from the terms and conditions that would have applied to them had they been at work, except for the terms providing for their remuneration (ie, sums payable to them by way of wages or salary). They are therefore entitled to continue to enjoy throughout their ordinary maternity or adoption leave non-cash benefits such as reimbursement of professional subscriptions, health benefits and contractual entitlement to holiday over and above the statutory minimum.

However, employees taking additional maternity and adoption leave are not currently entitled to benefit from the same terms and conditions as they do under ordinary maternity leave.

Extension of rights

The Regulations now provide that, with the exception of terms and conditions concerning remuneration, an employee taking additional maternity or adoption leave is, like an employee taking ordinary maternity or adoption leave, entitled to the benefit of (and bound by any obligations arising from) all the terms and conditions of employment that would have applied if she had not been absent. The Regulations also provide that the seniority, pension and similar rights of an employee returning from additional maternity or adoption leave will be, like those of an employee returning from ordinary maternity or adoption leave, unaffected by the absence.

The Regulations additionally extend the protection to those on additional maternity leave not to be subjected to any detriment for taking or seeking to take the benefits of additional maternity leave and also reinforce the right not to be unfairly dismissed for a reason connected with taking or seeking to take the benefits of additional maternity leave. Currently, an employee on additional maternity leave is protected under those provisions only where she took (or sought to take) additional maternity leave but is not protected by reason of her taking (or seeking to take) the benefits due under additional maternity leave.

Pension uncertainty

The position with regards to the continuation of pension benefits throughout periods of ordinary and additional maternity and adoption leave remains uncertain. Social security law already provides that pension benefits must be maintained during paid maternity and adoption leave. However, there remains real debate as to whether pension contributions fall outside the definition of remuneration and should therefore be maintained during periods of unpaid ordinary and additional maternity and adoption leave.

There currently exists conflicting legislation dealing with the issue of pension rights during maternity and adoption leave and it is to be hoped that there will be further clarification in due course.

Diane Gilhooley is HR expert in the education team at Eversheds.

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