There was more on offer than sugary treats at HR Zone’s debut event, held last week, updating members on latest extensions to maternity law. Attendees were delighted by the practical tips on offer including information on putting policy into practice and the application and administration of those troublesome Keeping in Touch days.

Six becomes nine
April 1st 2007 marked a milestone in maternity legislation. Like it or loathe it, depending on which side of the employer/employee relationship you sit on, working mums are now entitled to 39 weeks of statutory maternity pay (SMP). This equates to a leave period of nine months; marking a steady creep towards the Government’s intention of offering a full pay period for working mums of one year. The first six weeks of SMP are payable at 90 percent, with the following 33 at the lesser of £112.75 or 90 percent of normal pay.

The statistics go some way to explaining why the government has made this decision to extend the paid for period of maternity leave. According to the DTI, 75 percent of mothers surveyed in 2002 who were entitled to Additional Maternity Leave (AML) but returned to work said they did so for financial reasons. Only 11 percent said they did so because they wanted to, Sarah Graburn, partner at PJH Law told delegates.

Where the waters become grey and confusion sets in is that despite the extension of the pay period from six to nine months, the Ordinary Maternity Leave period and the AML period each still last for six months. SMP, however, now spans both periods which may cause confusion, Graburn explained. AML is also applicable regardless of service.

Paying for KIT
But by far the biggest bugbear, according to attendees, are the Keeping In Touch days. When the Work and Families Act 2006 was introduced in October 2006, there was a mixed reaction – good news for those planning on having a family whilst employers were less than delighted at further extensions to the paid leave period. However, in a goodwill gesture to employers the legislation made provision for an entitlement of ten keeping in touch days spanning the nine months of maternity leave. These are days when employees undertake work, training or any other work-related activity whilst on maternity or adoption leave for the purpose of keeping in touch.

But, according to Graburn, some employers are yet to be cheered by this provision and many are rather sceptical. It became apparent that delegates at the HR Zone briefing were particularly concerned with how to pay the KIT days. A business consultancy delegate who chose not to be named expressed concern at how to administer them: “I think my company needs to clarify how we pay for KIT days, do we pay additional amounts for a KIT if the woman is already receiving full pay during her leave and do we pay on top of any statutory pay?” SMP continues to be paid on KIT days but employers might look to reduce pay for KIT days worked by SMP whilst employees may say they were due SMP anyway. This could be a new area for negotiation between the parties.

Attendees were also in the dark on how to make the best use of them, many expressed concern that the KIT days would merely wind up as a day for sharing office gossip and cooing over baby photos whilst others were adamant that paid for KIT days would be put to good use via briefings and training. And whilst these days appear in theory a great idea, there is no disputing the fact that it is very difficult to get an absent employee up to speed over a period of short and scattered re-orientation days. The further sting in the tail is that there is absolutely no right to insist the employee works during their maternity period which makes compulsion a little difficult.

Keeping maternity absentees in the loop
The obligations don’t end at KIT, however. Pointing to recent case law Visa International v Paul Graburn highlighted the dangers of failing to disclose job opportunities and internal vacancies to those on maternity leave. In this case, Mrs Paul who was an administrator but who’d expressed interest in other areas of the business before her maternity leave was subject to a reorganisation which took place whilst she was on leave, creating two new posts. She claimed that she was not informed of the vacancies or given the opportunity to apply and claimed constructive unfair dismissal. The complaint was upheld and Visa International was found to be in fundamental breach of implied terms and conditions.

Commenting on the case a delegate said: “I was surprised at the case involving Visa International where an employee sued and won, as she was not informed of a job opportunity whilst she was on leave. I think this verdict was surprising as it was found the woman had no chance of actually getting the job were she to have applied.” This, however, is no excuse and employers must be aware of the dangers of sending out vacancies by email when it can’t be assured that those on maternity leave have access to or the inclination to check on latest communication in this format. The total award for Paul amounted to a whopping £26,000.

So what does the future hold?
It’s no secret that maternity pay periods look set to be extended to a full 52 weeks within the lifetime of this parliament, but by far the biggest change will be the possibility of increasing paternity leave, currently amounting to an insignificant two weeks to a 26 week period with paternity pay mirroring that. Marking the advent of modern parenting, the government also looks set to allow mums and dads to share the maternity period between themselves. The new law intends that mothers will return to work after six months and the father will then take a more active part in the childcare responsibilities. Additional paternity leave, however, will be unpaid but the father will be entitled to additional paternity pay, likely to be paid at the same rate as statutory paternity pay – if the mother has not by then used up all her entitlement to statutory maternity allowances. A move that delegate Leah Fairman, HR Manager for the buyingTeam heralds as a significant step towards equality in the workplace:

“With current legislation employers are inevitably more aware of women of childbearing age and the potential for them to take a substantial amount of time out of the workplace. This new legislation could take the sting out the tail for women and mean that employers will look at male and female employees more equally.”

Statistics showing the split of child caring responsibilities between mums and dads is a good indicator of just how far we’ve come, in the mid 1970s fathers spent an average of just a quarter of an hour a day caring for their children but there is still a long way to go, by the late 1990s this had risen to an average two hours a day. But employers cannot ignore the fact that more and more women are returning to work. Working women increased from 56 percent in 1971 to 70 percent in 2004 whilst the proportion of women with children who work has risen from 57 percent in 1994 to 63 percent in 2004.

The idea of splitting leave between mums and dads doesn’t seem so ridiculous in light of this. Indeed Esther Smith, partner at Thomas Eggar and speaker at the event is herself a gleaming example of how work and family could shape up in the future, a full-time working mum herself, her partner is the stay-at-home dad caring for their two children. But what about parents that want to strive for more of a balance between work and family life, those that wish to work either part-time or strive for flexible working? Well yes you guessed it there is more legislation to assist them reach that nirvana.

Stretching the flex
The Flexible Working Regulations 2002 allow employees the right to request a change in working; popularly this comes in the shape of either a change in the pattern of hours, the number of hours, the location or a different job altogether to fit in with caring responsibilities. Those qualifying must have twenty six weeks’ continuous service, be the parent of a child under the age of six or eighteen if disabled have or expect to have responsibility for the child and make one request only in any twelve month period. This request must also be in writing.

Smith highlighted the relatively minor implications of getting the procedures wrong and the very major implications of giving rise to a sex discrimination claim; a thought echoed by delegate Jennifer Liston-Smith, Director, Managing Maternity Ltd who commented: “I could also see that there were some concerns about doing the wrong thing even while attempting to do the right thing because of issues around indirect discrimination (applying policies which disproportionately affect women, or mothers, for example).”

Grounds for refusal can still prove tricky; Smith pointed to the following as ticking the ‘reasonable’ box:

• Burden of additional costs




• Detrimental effect on ability to meet customer demand




• Inability to re-organise work




• Inability to recruit additional staff




• Detrimental impact on quality




• Detrimental impact on performance




• Insufficiency of work during certain periods




• Planned structural changes

Even with these justifications under the belt the right to flexible working is still a potential minefield. From 6 April 2007 that right extended to carers for a person aged eighteen or over and Smith warned that this may give rise to similar implications under the Disability Discrimination Act. This further category gives rise to disputes over the definition of what constitutes a carer and a relative and only time will tell whether these rights will be abused.

The Work and Families Act (WFA) 2006, however, is not all tipped in the favour of the employee. Speaker Richard Fox, head of employment law at Kingsley Napley pointed to the new obligation on employees that intend to return early from maternity/adoption leave to do so with eight weeks notice – double the previous period which was twenty eight days, allowing employers valuable time to plan for their staffing needs. But what they give with one hand they take away with the other.

Maternity regulations previously exempted small businesses, defined as those with five or fewer employees from the obligation of offering maternity returnees the right to go back to the same or similar work following their period of AML. As of 1 April 2007 that small employer’s exemption no longer exists. The DTI felt that this exemption potentially confused small employers in relation to whether or not to hold employees’ positions open whilst they were on maternity/adoption leave. Small businesses, however, may not agree. And as a further blow to SMEs already struggling with extended employee absences it is expected that statutory holiday entitlement will be increased to 5.6 weeks by October 2009.

And finally …
So where next? Can businesses accommodate further extensions which a Brown Government may well favour? Fox pointed to a report in the Times, published earlier this year quoting Beverley Hughes, The Minister for Children (at the time of writing) who calls for changes to reflect the growing demand of people to be able to work flexibly, proposing that all jobs be advertised as possible part-time or flexitime positions unless there is a sound business case not to. The response from the Federation of Small Businesses echoed what many were already thinking: “The temperature of this whole debate needs to go down and the current regime tested against a more difficult economic backdrop before we take a step further. The needs of businesses have got to be respected.”

Hazel Reed, FCIPD, Spellman HV Electronics Ltd, an attendee at the event, sympathised with the plight of small businesses: “I do not think the maternity laws are getting too complex, but it must be difficult for small companies to manage all the leave and the cost. The Company I work for is very much into family friendly matters and views all employment law as very important.”

Women have to have babies and be given a period of leave with financial assistance to enable them to do so, the provisions set in place since 1 April 2007 allow them to do that. Fathers also look set to take on a greater role, whether like the current paternity period that has poor take up this right will have any takers remains to be seen, short of changing the fundamentals of procreation it looks unlikely. As Reed says: “As far as maternity and paternity law… well until babies are reared in test tubes for the first nine months women have to have them. It’s something that has to be managed in the work place, I think it is very good that fathers will be sharing the lovely burden.”

And that really is the point, this is not an issue that will disappear, the Government will continue to shape and come up with new ideas on how to manage those that need to leave the workplace to care for others for a period of time, the trick for businesses is keeping up with those changes and dodging the claims for discrimination.