The last eighteen months have seen the extension of flexible working rights to all employees, the arrival of “Shared Parental Leave” (replacing “Additional Paternity Leave”) and, most recently, the prospect of “Grandparental Leave” has hit the headlines. Currently, more than a quarter of families where both parents work rely on grandparents for some childcare. Since last year all employees have been entitled to request flexible working, which has allowed grandparents to request changes to their own work patterns to care for their grandchildren. Under the more popularly dubbed “Granny Leave” proposals, working grandparents would be able to take off up to 18 transferable weeks of shared parental leave to help care for their grandchildren if both parents wished to go to work in a baby’s first year. The hope is this would encourage more people to stay in the workforce for longer, thereby boosting the economy. However, businesses have criticised the plans for adding to “a decade of upheaval”, following increases in entitlement to maternity leave and pay, Additional Paternity Leave, Shared Parental Leave and pay.
While the legislation remains in draft form, and will no doubt continue to be batted back and forth for some time, it’s clear that talk is turning towards new modern and practical ways of supporting working families in their efforts to juggle home and career. In the meantime, though, it’s important not to lose sight of the more established legislative provisions governing (good old fashioned) maternity leave that have been in place for many years.
In particular, as an employer, are you comfortable that you understand your obligations towards a female employee if she tells you that she is pregnant? Key areas some of our clients often grapple with are how best to advertise a maternity role and what to tell the individual that will be covering the role about how long they will be needed. Bearing in mind, broadly speaking, a maternity leaver has the right to return to the “same job in which she was employed before her absence”, how can an employer safely dismiss the maternity replacement when the maternity leaver returns to the office?
Helpfully, there is a special legal provision under the Employment Rights Act 1996 which allows an employer to fairly dismiss an employee who has been specifically appointed to provide maternity cover. To make use of this protection, though, a careful procedure must be followed:
1) The employer must inform and notify the replacement employee at the time of his/her appointment if the employment will be terminated upon return of a permanent employee from maternity leave.
2) Any such notification must be clear, unambiguous and in written form (although does not necessarily need to be stated in the contract itself).
The legislation makes clear that it is not enough just to tell the replacement employee that he/she will be covering the role because the employee is on maternity leave; it must be+unambiguously stated+ that the employee’s employment will be +terminated upon resumption of work+ (by the employee on maternity leave) +pursuant to s.106(2)(a) Employment Rights Act 1996.+
This message must be +unequivocal+ and must be given at the outset of the relationship, so as to leave no doubt on the part of the replacement employee as to the circumstances in which the employment relationship would end.
Given this, it is important to ensure that any job advert, offer letter and employment contract make clear the job is for “maternity cover” and that the job will terminate upon the return. Notice provisions should also be carefully considered to suit the circumstances. Usually providing for termination on statutory notice will offer an employer the greatest flexibility, but advice should be sought on this if needed.
Similar wording should also be used verbally at the job interview so the replacement is left in no doubt as to the intended duration of their role. It is always good HR practice to make a written note of meetings like this, so there is a clear record that the replacement employee was notified from the outset of the nature of their role.
As a reminder, an employee who takes only ordinary maternity leave (OML) or returns before the end of OML, will be entitled to return to the “same job in which she was employed before her absence”. Unless a genuine redundancy situation has arisen, the returning employee’s terms of employment must be the same as, or not less favourable than, they would have been had she not been away and she should benefit from any improvements as if she had not been away (e.g. any pay rise).
Where an employee takes a period of additional maternity leave (AML), or a period of at least four weeks’ parental leave on top of her OML, and there is some reason (other than redundancy) why it is not reasonably practicable for her to be allowed to return to the same job (for example, if there has been a reorganisation), she is entitled to return to a different job which is both suitable for her and appropriate in the circumstances. In this case the terms and conditions of the new role must not be less favourable than they would have been had she not been absent.