The draft Maternity and Parental Leave etc and Paternity and Adoption Leave (Amendment) Regulations 2008 have been published which will remove the distinction between Ordinary Maternity Leave (OML) and Additional Maternity Leave (AML).

Implications

As employers will be aware Maternity Leave is split between OML in the first 26 weeks and AML in the remaining 26 weeks. There are corresponding periods for Adoption Leave. At present the terms and benefits provided to employees and the rights of employees returning from leave are different.

The Regulations, once in force, will remove these differences for women whose expected week of childbirth is on or after 5 October 2008. 

This will require employers to continue the same terms and conditions (with the exception of pay) throughout the entire period of maternity or adoption leave.

Employers should therefore review any maternity or adoption leave policies and make sure that managers are aware of the changes.

Details

The Regulations result from the High Court decision in Equal Opportunities Commission –v- Secretary of State for Trade and Industry ( 2007) where the Court ruled that UK law did not fully comply with the requirements of European Law, by treating OML and AML differently.

We previously updated you on these issues in our Newsflash of 18 March 2008 and the Regulations are now looking to implement these changes in respect of both Maternity and Adoption leave for employees whose expected week of childbirth or expected date of placement for adoption is on or after 5 October 2008.

The main impact will be the obligation to continue employee benefits and these could include contractual annual leave entitlements (over and above the statutory minimum), company cars, gym membership and mobile telephone. However, in most cases such benefits are already being continued under existing contractual maternity rights.

The Sex Discrimination Act 1975 will also be amended from 5 October 2008 to allow employees on AML to bring claims of discrimination in relation to any of the terms and conditions of their employment (except those relating to pay) during AML as well as OML.

Employers will need to treat an employee returning from AML or Additional Adoption Leave, the same as one returning from OML or Ordinary Adoption Leave. This means that all returners will have the right to come back to the same job (unless that position has been made redundant).