Family-Friendly Policies (Part 1) - Maternity, Adoption and Shared Parental Leave

It is important that your business is familiar with the process, including entitlements and notification requirements for employees taking maternity leave, adoption leave, shared parental leave or paternity leave.

In the first of this three-part series of articles on family-friendly policies (part 2 is on handling flexible working requests, and part 3 covers parental leave, compassionate leave and time off for caring for dependents), the latest feature from the Employee Handbook series by Leeanne Armstrong, Legal Director at TLT, discusses the key considerations for developing and implementing your policies concerning maternity, adoption, paternity and shared parental leave.

Summarising the key leave entitlements, we look more closely at the key considerations for employers around health and safety, remuneration, benefits and protections when an employee is expecting or adopting a child, and provide you with important legal insights from recent cases on shared parental pay and redundancy whilst on maternity leave.

The Legal Framework

As an employer, you need to understand the different types of leave and pay available to parents, including maternity, paternity, shared parental leave and adoption leave. It is advisable that you incorporate the statutory requirements into your policies (ensuring that they stay up to date), alongside any additional enhanced benefits that you wish to offer.

But what does the basic legal framework look like? This is complex, but an overview of the key entitlements is set out below.

Maternity Leave

Statutory maternity leave is 52 weeks and is divided into two categories:

• Ordinary maternity leave of 26 weeks (OML);
• Additional maternity leave of a further 26 weeks immediately following OML (AML).

Mothers do not have to take a full 52 weeks of maternity leave but it is compulsory for them to take the first 2 weeks after the baby is born, for health and safety reasons. If the mother works in a factory, this compulsory period of leave is increased to 4 weeks.

Shared Parental Leave

If an employee or their partner is having a baby or adopting a child, and subject to them meeting the eligibility criteria, they are entitled to take Shared Parental Leave (SPL). This means that following the first two compulsory weeks of leave that a mother must take immediately after the birth of the child, the remaining 50 weeks can be shared between parents, and up to 37 weeks of statutory pay can be split. This must be shared within the first year after birth, or in the first year after the child is placed with the parents for adoption.

A female employee will have to curtail her maternity leave in order to avail of shared parental leave with her partner, and both parents will be required to provide their respective employers with a Notice of Intention to take SPL which will include a signed declaration.

With the aim of giving parents more choice about how to care for their families, SPL can be used all at once (a continuous period), or can be split into different blocks (a discontinuous period). Parents may take leave together or separately, but for every week that both parents are off, this will take 2 weeks of available leave out of the SPL pot.

A period of leave notice must be submitted to the employer no less than 8 weeks before the first period of leave is to be taken. If the requested leave is discontinuous, a period of leave notice should provide details of the separate periods of leave proposed. Crucially, if the employee requests a continuous period of leave, this must be granted. However, if discontinuous periods of SPL are requested, the employer can propose alternative dates or refuse the request.

The Labour Relations Agency (LRA) and the Advisory, Conciliation and Arbitration Service (ACAS) have prepared helpful guidance and template forms which your business may find useful if navigating your way through a request for SPL.

Example

The mother (M) takes 12 weeks (inclusive of the 2 compulsory weeks) of maternity leave before curtailing. She and the father (F) wish to take a further 10 weeks together, after which F will take a further 7 weeks, and M will return to work. This equates to 39 of the 52 available weeks that can be taken. Subject to meeting eligibility criteria, statutory shared parental pay could be paid for all of that period, but any additional leave taken would be unpaid. In this instance, the period of leave requested by both M and F is continuous, with M taking 10 weeks, and F taking 17.

Whilst the introduction of Shared Parental Leave had the effect of removing entitlement to additional paternity leave, ordinary paternity leave of up to 2 weeks still exists, subject to satisfaction of the necessary eligibility criteria. Ordinary paternity leave is one period of leave, which may be taken as either 1 week or 2 continuous weeks' leave, and must be taken within 56 days of the child's birth or placement with an adopter.

Leave entitlements for parents adopting a child follow a very similar framework to those applying to persons taking maternity and shared parental leave. However, there are a few specific points that are worth noting:

• Entitlement to Statutory Adoption Leave and Pay will be subject to the employee adopting in a way that is covered by the statutory scheme. This will cover placement for adoption via an adoption agency, foster parents approved for adoption under a "fostering for adoption scheme" and parents of a child born to a surrogate mother (also known as "parental order" parents).
• There remains no right to statutory adoption leave or pay in cases of private adoptions, in surrogacy cases where the individual is not eligible for a "parental order", and in cases involving special guardians or kinship carers.
• The framework for adoption from overseas (outside of the UK) has its own unique requirements to those in cases of domestic adoption.
• In certain situations both ordinary and additional adoption leave can end or be "disrupted" meaning that the entitlement to leave and pay will cease. This will occur when an employee has already started a period of adoption leave before the date they expect the child to be placed with them and that adoption does not subsequently go ahead, or if during a period of adoption leave the child dies or is returned after being placed for adoption. In those circumstances, the employee's adoption leave will terminate within 8 weeks of the terminating event.

Health and Safety

As an employer you are always under a duty to protect the health and safety of your employees. In addition, when notified that an employee is pregnant you will also need to consider if there is a possible health and safety risk, and make any necessary adjustments to their working arrangements and / or environment.

This duty will, however, only arise if the work undertaken by the mother is of a kind which could involve a "special risk" to the mother or their baby. In a case called Madarassy v Nomura International plc [2007] ICR 867, the Court of Appeal held that an employer was not required to undertake a risk assessment when a pregnant employee claimed that she was at risk of discomfort and "radiation exposure" from sitting at a computer. Following on from the Madarassy decision, the Employment Appeal Tribunal confirmed that "the stressful nature of the work in general terms" (teaching) was not a "special risk" requiring a health and safety assessment. However, as a matter of best practice, the safest course of action is to undertake a risk assessment for all pregnant employees, as soon as you are notified of the pregnancy.

If, on undertaking a pregnancy health and safety assessment a significant risk cannot be avoided through other action, you must take steps to alter the employee's working conditions or hours of work. Where this is not possible, alternative work on the same terms and conditions should be considered.

Where alternative work is not possible, you are required to suspend the employee on paid leave for as long as necessary to protect her health or safety, or that of her child.

That said, any action you take should be proportionate and balanced and based on the outcome of a proper risk assessment.

Remuneration

For those who are eligible, statutory pay for maternity, shared parental and adoption leave will be paid for 39 weeks. Employees on maternity leave must be paid a weekly rate equal to 90% of their average weekly wages for the first 6 weeks. Thereafter the statutory rate will be paid for the remaining 33 weeks. The current statutory weekly rate of pay is £148.68 (from April 2019) or 90% of the employee's average weekly earnings where they earn less than the statutory rate.

Except in circumstances where a discontinuous period of shared parental leave is taken, the payments will stop automatically on the mother/parent's return to work even if they have not used the full 39-week entitlement.

In addition to these minimum entitlements, your organisation can offer enhanced leave and pay. Whilst there is no obligation to go beyond the minimum statutory entitlements and protections for working parents, positive family-friendly policies can play an important part in attracting talent in a competitive employment market and can be utilised to encourage employee retention. For example, you may wish to consider linking enhanced benefits to length of service, and / or requiring repayment of enhanced benefits if an employee leaves your employment within a certain timescale after taking leave. Note in the latter case, that it will never be possible to ask an employee to repay statutory maternity pay, and recovery would be limited to the enhanced element of the payment only.

Laying out any additional leave and / or pay entitlements and any relevant criteria is key, and you may wish to refer employees to a person within your organisation with responsibility for advising employees on their rights under your family-friendly policies. You may also wish to specify that in the event of any conflict between your internal policies and legal requirements, the legal framework will take priority.

In order to provide your organisation with maximum flexibility to make changes to benefits provided under these policies, it is recommended that they are stated clearly as non-contractual. In contrast, if the policy/policies are stated to form part of the contract of employment, this would mean having to enter into a period of consultation with employees to seek their consent to make the changes.

Is enhancing maternity pay but not shared parental pay discriminatory?

If you offer enhanced maternity pay, you must consider whether to match that benefit for male employees taking Shared Parental Leave. This area of law is complex and was considered in two recent cases which focused on whether it is unlawful discrimination for men to be paid less on shared parental leave than birth mothers are paid on maternity leave. In joined appeals, the Court of Appeal held in Ali v Capita Customer Management Limited; and Hextall v Chief Constable of Leicestershire Police [2019] EWCA Civ 900 that it was not direct or indirect sex discrimination, or a breach of equal pay legislation, to pay male employees taking Shared Parental Leave less than mothers taking maternity leave.

In the Ali appeal the Court of Appeal did not accept that "after the compulsory two weeks of maternity leave following birth, the purpose or predominant purpose of statutory maternity leave is the facilitation of childcare". They considered a female employee on statutory maternity leave not to be comparable to an employee on shared parental leave and dismissed the appeal. In the Hextall appeal they cited that "restriction of maternity pay to birth mothers cannot be the subject of a direct discrimination claim or an equal terms claim because Parliament has made an exception for provisions giving special treatment to a woman in connection with pregnancy or childbirth". In other words, the Court of Appeal has decided that it is not discriminatory against men taking Shared Parental Leave to offer more favourable benefits to women taking maternity leave. That said, as a matter of practicality and in the interests of maintaining good employee relations, many employers do equalise pay and benefits between women taking maternity leave and all employees taking Shared Parental Leave. If, however, you decide not equalise maternity pay and Shared Parental Leave pay, keep a close eye on the progress of Ali and Hextall cases, as this decision is very likely to be appealed. Finally, note that it will still be discriminatory to offer different rates of pay for men and women within any enhanced Shared Parental Leave pay scheme; a mismatch in benefits is only allowed between enhanced Maternity Pay and enhanced Shared Parental Leave pay.

Contractual Benefits

Whilst on maternity or shared parental leave, an employee has a right to the same terms and conditions and benefits of employment which would apply if they were not absent, except for those related to remuneration, as we have already discussed.

Entitlements to any employee benefits and pension should therefore continue during maternity, adoption or shared parental leave.

Annual leave entitlement will also continue to accrue, for both statutory holiday and, any additional contractual entitlement your organisation offers.

European case law has made it clear that statutory annual leave cannot be taken at the same time as maternity leave and any compulsory holidays during this period also cannot count towards statutory holiday. You must therefore allow an employee to take their full statutory entitlement outside of their maternity leave period.

Although it is less clear in case law how any enhanced annual leave entitlement your organisation offers should be accrued, a policy allowing for the carry-over of annual leave can help you exercise caution in this area. It can also help maintain an organisational approach that is supportive of families. You may wish to consider discussing the balance of annual leave with your employees before they take maternity leave.

Special Protections

You should exercise extreme caution when considering redundancy that involves an employee on maternity, adoption or shared parental leave.

The Sex Discrimination (NI) Order 1976 outlaws discrimination on the grounds of pregnancy or maternity leave. In addition, under the Employment Rights (Northern Ireland) Order 1996 a dismissal will be automatically unfair if it is for pregnancy, childbirth or maternity-related reasons.

Known as the 'protected period', women will be protected from such unlawful discrimination from the beginning of their pregnancy and the end of her additional maternity leave, or when she returns to work (if earlier). If there is no statutory right to ordinary and additional maternity leave, the protected period will end 2 weeks after the end of the pregnancy (for example, a job applicant, agency worker or an employee who has had a miscarriage or stillbirth before 24 weeks of pregnancy). In Great Britain, a recent consultation has recommended that the protected period be extended to 6 months after the employee's return to work.

As the law recognises employees out of the workplace on such leave are at a disadvantage during a redundancy process, they are afforded some additional protections. Under Regulation 10 of the Maternity and Parental Leave etc. Regulations (Northern Ireland) (1999) where an employee is made redundant during ordinary or additional maternity leave they must be offered a suitable alternative vacancy (where one is available), and offered these at a priority over their colleagues not on such leave. This requirement applies regardless of whether or not other employees may be more suitable for the role; as long as the role is suitable for the employee on leave, they must be slotted into the role. In Sefton Borough Council v Wainwight, the EAT confirmed that an employee on maternity should not have to undergo a competitive interview for an alternative role. Similar protections apply to those employees who are off on adoption and shared parental leave.

Note this obligation is only triggered when the employee is selected for redundancy, and any alteration of selection criteria or automatic elimination of those employees from the selection pool by reason of their pregnancy or maternity/adoption/shared parental leave status could leave an employer exposed to sex discrimination claims by male employees (See Eversheds Legal Services Limited v De Belin [2011] where a male employee successfully sued his employer for sex discrimination after they had inflated the score of a female employee on maternity leave).

Summary

It is important that your business is familiar with the process, including entitlements and notification requirements for employees taking maternity leave, adoption leave, shared parental leave or paternity leave. Whilst the processes themselves are somewhat mechanical, it is important to consider your duties and obligations as an employer both in terms of health and safety and those special protections that apply to those on maternity, adoption and shared parental leave.