The Department for Business, Enterprise and Regulatory Reform (BERR) has published draft regulations (the draft regulations) (with an accompanying explanatory memorandum) that aim to align the entitlements available for additional maternity leave (AML) (i.e. leave after the first six months of absence) with those available for ordinary maternity leave (OML) or the first six months of absence.

The draft regulations are intended to have effect in relation to employees whose expected week of childbirth begins on or after 5 October 2008.

The basic principles on minimum entitlement to pension benefits are:

  • pension benefits must be extended in full during any paid maternity leave;
  • statutory maternity leave (SMP) counts as pay. There has been an extension of SMP to 39 weeks, but the government has indicated it intends (at some stage) to extend this further to a whole year;
  • although it has generally been thought that pension benefits need to be provided in full during any period of OML, whether paid or not, doubts have recently been expressed as to whether this is required;
  • currently benefits during AML have been treated as not required unless and until the employee is paid (and in most cases she will be for the first 13 weeks of AML as SMP is now paid for 39 weeks). The changes proposed by the draft regulations envisage putting AML on the same footing as OML for benefits, so again it is unclear whether pension benefits have to be provided for this period.