Category Archives: maternity leave

family unfriendly?

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McGrigors is one the leading UK-based law firms with offices in London, Edinburgh, Glasgow, Belfast, Aberdeen, Manchester, Qatar and Falkland Islands. It describes itself as one of the UK’s most dynamic law firms and reports in a recent press release that it has signed a commitment to widen access to the legal profession.

However, in a firm-wide memo issued on 13 September, staff were informed that it is commencing a consultation on paying bonuses to mothers who return to work and reducing pay for mothers who take a second maternity leave within 18 months from their last one.

It also plans to reduce long term sickness benefits. Continue reading →

consultation on modern workplaces – parental rights

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The Government issued its BIS "Modern Workplaces Consultation" on 16 May 2011 . One of the topics covered is "Flexible Parental Leave". Consultation closes on 8 August 2011.
In bare outline, the main elements in the “flexible parental leave” part of the proposals are :

Initial leave rights (around the birth/adoption of a child):
  • Maternity leave to be reduced from the current 52 weeks to 18 weeks (the minimum required by new EU law);
  • "Flexible parental leave" would be available for the next 34 weeks (i.e. after the 18 weeks’ maternity leave period), shared between the parents as they see fit;
  • If the parents decide not to share the 34 weeks so that one of them takes it in full, then a further period of "reserved leave" (4 weeks is suggested) will be available to the other (this is social engineering – the government specifically says at para. 48 that this is because it wants to change the "widespread cultural expectation that it should always be the mother who takes time out from work to care for children");
  • Ordinary paternity leave to remain at 2 weeks;
  • Fathers also to have the right to time off before the birth to attend a limited number (two is suggested) of pre-natal appointments.

Employers would be able to insist that leave is taken in a continuous period (the consultation paper says that "the process of agreeing when leave is taken is left up to the parties … Where they can not agree, the default position would be for parents to take leave in one continuous block"). It also suggests that there "should be no restriction on parents choosing to take leave concurrently. Allowing only one parent to be out of the workplace at any one time would place unnecessary restraints on how leave may be taken, and interfere with the ability of parent and employer to agree how leave is taken".

Subsequent leave rights

Currently parents who have been employed by their current employer for a year or more are entitled to 13 weeks’ parental leave for each child aged between one and five, Not more than four weeks can be taken in any year and the leave must be in blocks of a full week.

The essence of the proposals is to increase the amount of parental leave from 13 to 18 weeks (this is required by new EU law), to remove the requirement of a year’s employment and possibly to increase the age of the child from 5 to 8, 12, 16 or even 18.

Pay

Currently employed mothers who qualify get statutory maternity pay (SMP) for 39 weeks. They receive 90 per cent of their average earnings, subject, after the first six weeks, to a cap of (currently) £128.73 per week.

Under the new proposals the 18 weeks’ maternity leave and the first 21 weeks of the 34 weeks of flexible parental leave would be paid at 90 percent of average earnings subject to the cap noted above, currently £128.73 per week. There is no mention in the consultation paper of special provision during the first six weeks, as at present. The four weeks’ "reserved leave" noted above would be leave with pay as would the two weeks ordinary paternity leave (as at present).

Other leave (including the father’s right to time off for pre-natal appointments and the right to parental leave after the child’s first birthday) would generally be unpaid.

Finally

The suggestions in the consultation paper are not set in stone. They may well be changed, although no doubt the general thrust of encouraging parents to share in the bringing up of small children will be retained. Concerns have been raised that in practice there will be enormous administrative costs involved, not least in policing, if a new system along the lines suggested in the consultation paper is to be adopted and not abused. Concerns have been expressed by, amongst others, the British Chambers of Commerce (BCC) and the Federation of Small Businesses (FSB).

sex discrimination – speculation can be taken into account

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Even leading law firms can get it wrong. What do employers do if they have to make redundancies and one of the candidates has been absent on maternity leave? That gave rise to a dilemma for national solicitors’ firm Eversheds. They have lost a legal battle but it is possible that they will win the financial war as compensation awarded against them is to be reassessed.

Eversheds had to dismiss as redundant one of the two solicitors in a particular department. There was a potential sex discrimination problem because one was a woman and the other a man. The woman had recently been absent on maternity leave and one of the criteria used in the selection process concerned levels and timings of billing. That criterion would obviously weigh against her as she had been away. Not wanting to be accused of sex discrimination by the woman concerned, Eversheds decided that the most appropriate way to play fair was to deem that for redundancy selection purposes she had had a good billing performance record. They awarded her “points” on that basis.

In the event it was the male solicitor, who had been with Eversheds for 14 years, not the woman, who was selected for redundancy. Eversheds then faced a sex discrimination claim by him.

He had complained from the start that the “favouritism” shown to his female colleague amounted to sex discrimination against him. Eversheds had clearly been in a quandary but felt what they were doing was fair and that if he sued them they would be able to rely on an exception in the anti-sex discrimination statute to the effect that in considering whether a man has suffered unlawful sex discrimination “no account shall be taken of special treatment afforded to women in connection with pregnancy or childbirth”.

He did sue. And he won. Not only did he win, but the employment tribunal awarded him well over £100,000, mostly for loss of future earnings. The tribunal refused to take into account the possibility that he might have been dismissed anyway a few months later in a separate redundancy exercise on the basis that this was mere speculation. Eversheds, no doubt feeling badly treated, appealed to the Employment Appeal Tribunal, both against the decision that they had acted unlawfully and against the amount of compensation.

At the appeal they lost on the first of these points. The President of the EAT said that the exception noted above should be construed “in a manner which incorporates the principle of proportionality”. On the facts of this case Eversheds had gone beyond what was reasonably necessary – there were alternative ways of removing the maternity related disadvantage to the woman without unfairly disadvantaging the male claimant. Eversheds had gone over the top in the method they used to ensure that she would not be placed at a disadvantage in the redundancy selection process.

However Eversheds did win on the compensation point to the extent that the EAT sent that aspect back for reconsideration by a different employment tribunal. In doing so the Appeal Tribunal made the important point that the employment tribunal had a duty to take a view on whether the claimant in the case would have been dismissed anyway a few months later in a second redundancy exercise notwithstanding that this would involve a significant degree of speculation. Quoting from an earlier judgment, the President said that “The mere fact that an element of speculation is involved is not a reason for refusing to have regard to the evidence” and gave a strong steer to employment tribunals that when assessing compensation in a dismissal case they should not decline to undertake a “would he have been dismissed anyway?” exercise merely because it involves speculation.

For those who want to read the full story, the EAT judgment in Eversheds Legal Services Ltd v de Belin, is available on the internet.

Additional paternity leave

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Employed new fathers who have completed 26 weeks continuous employment with their employer already have the right to two weeks’ paternity leave with statutory paternity pay.

New, additional, paternity leave rights come into force in relation to children whose expected week of birth (or matching for adoption) begins on or after 3 April 2011 (the detail is in the Additional Statutory Paternity Pay (Weekly Rates) Regulations 2010). The general idea is that where parents of a child are both working, then once the mother goes back to work (which for this purpose cannot be before the baby is 20 weeks old), the father can then take up to 26 weeks of “additional paternity leave”.

The additional paternity leave is in addition to the two weeks which the father is entitled to take under existing law during the 8 weeks after the baby is born. It must be completed before the child’s first birthday and must be one continuous period. The right is only available to the husbands/partners of working mothers (self-employed counts – technically the requirement is that the mother must be entitled to one or more of the following: (i) maternity leave; (ii) statutory maternity pay; or (iii) maternity allowance). The right is only available if – and after – the mother returns to work.

An important point is that the right to additional paternity leave is NOT a right to share the 52 weeks’ maternity leave available to mothers – in practice it may have that result but in law the father’s right to additional paternity leave is separate from the mother’s right to maternity leave. Therefore the total taken by both mother and father can exceed 52 weeks. Thus if the mother starts maternity leave on the earliest possible date (11 weeks before her expected week of childbirth) and goes back to work 20 weeks after the child is born she will have had 31 weeks of maternity leave (assuming the birth happened when expected). The father can then take 26 weeks additional paternity leave – this will expire before the child’s first birthday and thus fulfil that condition. The total of the maternity leave and additional paternity leave will then add up to 57 weeks and on top of that the father will have been able to take the normal two weeks’ paternity leave available under previous law. This means that in total in this example, between them the mother and father will have had 59 weeks’ leave. They will of course also have their normal holiday entitlement.

There is a limited right for fathers to be paid during additional paternity leave. The father can in effect claim any unpaid statutory maternity pay which the mother has forfeited by returning to work. As statutory maternity pay is limited in both amount (£128.73 as from 11 April 2011, or 90% of earnings if less) and duration (39 weeks) it follows that from a financial point of view it will only make sense for a man to take his full entitlement to additional paternity leave if the mother is going back to a well paid job.

The new right is available to the husband or partner of the mother and is available to adoptive parents. There are provisions to avoid fraud but, interestingly, the partners can be same sex partners leading to the result that a woman can claim paternity leave – as Humpty Dumpty said to Alice: ‘When I use a word, it means just what I choose it to mean – neither more nor less’.

Finally, it is worth noting that this new right to additional paternity leave may be subsumed in due course into new overall “family-friendly” rules which are likely to follow from a Government consultation which commenced this month.

newsletter – maternity leave changes and the EU

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The Pregnant Workers Directive 92/85/EC requires EU Member States to ensure that employed pregnant women and new mothers are guaranteed income during a 14 week maternity leave period at least equivalent to that to which they would be entitled if off work sick.  The European Parliament voted on 20 October 2010 in favour of plans to increase to 20 weeks this current 14 week period.  A compromise “18 week” suggestion was rejected.

At the same time the Parliament has voted to extend the requirement for compulsory maternity leave from two to six weeks and for paternity leave pay to be at full rate of pay for two weeks.

General details are available on the Europa website “Extending maternity leave to 20 weeks with full pay“.

The Parliament’s proposals will now pass to the Council of Ministers. Given the controversial nature of the proposals it is likely that there will be pressure from Member States to ensure that they are amended before they are formally adopted – and it is even possible that they may be rejected.  It can also be argued that the proposals could be counter-productive from the point of view of feminist MEPs in that raising the amount of fully paid maternity leave from 14 to 20 weeks will tend to drive private business away from employing young women.

According to the Federation of Small Businesses (FSB), the proposals could end up costing small businesses £7,140 for an employee on an average wage of £25,428.

Tina Sommer, EU and International Affairs Chairman of the FSB said:

“Small businesses are known to be flexible employers and it is unfortunate that maternity and paternity leave is one of the biggest barriers for them when looking to take on staff. The FSB fears that that these changes will result in an increase in the cost of maternity and paternity leave and will mean these costs have to be shared between government and the employer, at a cost of more than £7,000 to a small business – placing a further strain on cash-flow.”

Sky alleged to have sacked women editors to save maternity pay

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[picappgallerysingle id="9121043" align="left"] Digital broadcaster BSkyB is currently defending an employment tribunal claim in Croydon in which it is alleged that staff were dismissed as part of a restructuring exercise because they were the only part-time workers of child-bearing age in their department.

Natalie Stone and Victoria Waterson have brought claims alleging sex discrimination, discrimination against part-time workers and unfair dismissal. It is claimed that the employer acted with a view to avoiding the payment of “tens of thousands of pounds” in maternity pay. Ms Stone says that she was forced to leave her job the day before she was due to commence maternity leave.

Ms Stone and Ms Waterson are being represented in the tribunal by their husbands, who both happen to be lawyers. The women maintain that they were told by the editor of skymovies.com that they would lose their jobs before the process had even commenced, a claim which is denied by Sky.