Understanding the finer points of maternity leave regulations can be complicated; in this feature HR Zone member and HR Consultant Kathryn Aldred responds to an Any Answers posting about the legalities of working for a second employer whilst on additional maternity leave.
Firstly, there is a two week period of leave called compulsory leave, which every women has to take and it starts with the day following the date of birth. The period is extended to four weeks in a factory. An employer who allows a woman to work during this period can be fined. Beyond that, entitlement to ordinary and additional leave is currently determined by length of service, this of course will change for babies born after 6 April 2007, with entitlement to maternity pay determined by length of service and weekly earnings.
Therefore where a woman has more than one job she would need to look at each separately as her length of service and earnings will be different in each job.
Where a woman hasn’t accrued the necessary length of service she will not be entitled to take the additional period of leave or maternity pay. On the other hand where a woman has two jobs and has accrued the right to leave and pay in both she may decide to return to one job earlier than her other, or main job, to get the child used to visiting the childminder/nursery etc.
If the second job started after the woman commenced her period of maternity leave then all you can reasonably do is enquire as to whether the job will clash in any way with the hours she is contracted to work for you. Bear in mind though the job could just be a temporary arrangement.
But what rights do you have if you have a clause in your contracts which prevent second jobs and are notified that someone is working whilst they are taking a period of maternity leave? Our recommendation would be to invite your employee to an investigatory meeting to discuss the situation. Keeping an open mind of course, as there could be a simple explanation that is just because she was seen in a shop does not necessarily mean she was working there, even if she was standing behind the counter.
If your employee has accepted a second job and does not intend to return to work she should provide you with her contractual notice period or, where that doesn’t exist, the statutory period. If her date of leaving occurs before the end of the maternity pay period she would be entitled to receive the outstanding part of her maternity pay plus or minus any other monies due, such as under or over taken holiday.
Looking at the other side of this coin, where do you stand if you are the second employer? We always thoroughly recommend reference checking employee’s as this is your insurance that your new or potential employee has told you the truth that is where, when and in what capacity they worked for a previous employer. This forum is your opportunity to ask the woman’s other employer(s) whether they have any objections to her also working for you.
If they say no you simply go ahead with the appointment, if they say yes you can ask them why but you would certainly need to let the woman know and give her the opportunity to explain why that might be the case.