The Work and Families Act 2006 (“WFA”) sets out the framework for the latest array of family friendly policies from the government. It provides the basic outline of the changes leaving much of the detail to come in by secondary legislation.

Most of the changes relate to maternity and adoption rights. These will apply to employees whose expected week of childbirth (“EWC”) is on or after the 1 April 2007 or, in the case of adoption, employees who are expected to have a child placed with them for adoption on or after 1 April 2007.

The main changes are:

Removal of Qualifying Period for Additional Maternity Leave

The length of service requirement for additional maternity leave (currently 26 weeks) will be removed with a result that all women who qualify for ordinary maternity leave automatically qualify for additional maternity leave. Accordingly all women will be entitled to 52 weeks maternity leave regardless of how long they have worked.

Extension of Notice of Return from Maternity Leave

The notice women are required to give if they wish to return to work early from maternity or adoption leave will be doubled from 28 days to eight weeks. The rational is to give employers more time to plan their staffing needs.

“Keeping in Touch” Days

“Keeping in touch” days will be introduced. An employee on maternity or adoption leave will be able to work for up to ten days during the statutory leave period without losing statutory pay or bringing that leave to an end.

“Work” includes any work done under the contract of employment and may include training or any activity undertaken for the purpose of the employee keeping in touch with the workplace.

Any work done under these provisions does not extend the total statutory maternity or adoption leave period. However, any such work must be by mutual agreement between the parties.

Employers need to consider paying the employee should they work during their maternity or adoption leave. The legislation does not deal with this. It is therefore a matter of agreement between the employer and employee.

However, consideration needs to be given to other matters such as the national minimum wage, equal pay and sex discrimination. 

Maternity Pay

The period during which a woman is entitled to receive statutory maternity pay (“SMP”) will be extended from 26 to 39 weeks (the government has also reserved the power to further extend the maternity pay period to 12 months and has said it will do so before the end of this parliament).

The qualification criteria remain the same (in particular, the employee must have been employed continuously for at least 26 weeks by the 15th week before the EWC and must earn more than the national insurance threshold).

The first six weeks of SMP stays at 90% of the employee’s average earnings. The remaining 33 weeks will then be paid at the lower of either 90% of average earnings or a specified flat rate (currently £108.85 per week - £112.75 from April 2007).

At present, whilst a woman can start her maternity leave on any day of the week, SMP is only payable from the following Sunday.

This means that maternity leave and the SMP period do not usually tally. In some cases this can cause a degree of financial hardship because the employee is not paid for the first week of her maternity leave.

The new rules mean that a woman’s SMP period can start on the actual day her maternity leave begins.

Adoption Leave and Pay

Many of the changes that apply to the maternity pay regime will also be extended to statutory adoption pay (“SAP”).

Currently, an employee who is the adopter of a child and who has been continuously employed for 26 weeks ending with the week in which he/she is notified of having been matched with the child and has agreed a date of placement with the adoption agency, is entitled to statutory adoption leave of up to 52 weeks.

From April 2007 employees who are adopting and meet the qualifying conditions based on their length of service and average earnings, will also be entitled to 39 weeks SAP.

Flexible Working

There will be an extension of the existing right to request flexible working to those employees who have responsibility for caring for adults (with effect from 6 April 2007).

Since April 2003 the right to request flexible working (changes to working hours, time or place of work) has been available to qualifying employees who care for a child or children under six, or in the case of a disabled child, under 18.

The right will be extended to employees with 26 weeks qualifying service who are, or are expecting to be caring for a person aged 18 or over who:

#  is married to or is the partner or civil partner of the employee; or

#  is a relative of the employee; or

#  falls into neither of the above categories but lives at the same address as the employee.

There is no definition of “care” as it was felt that this might deter people from applying if the definition did not coincide with their exact circumstances. The right is extensive and a wide range of employees could make a request.

The employer may refuse a flexible working request on the following business grounds:

#  the burden of additional costs;

#  detrimental effect on ability to meet customer demand;

#  inability to re-organise work among existing staff;

#  inability to recruit additional staff;

#  detrimental impact on quality;

#  detrimental impact on performance;

#  insufficiency of work during the periods the employee proposes to work; or

#  planned structural changes.

Additional Paternity Leave and Pay

Finally, the government has also suggested a new statutory right of additional paternity leave (“APL”) to be introduced by the end of the current parliament.

Presently employed fathers are entitled to take two weeks statutory paternity leave in the first eight weeks following the birth of their child, or its placement for adoption, and to receive statutory paternity pay during this period.

A new right for employed fathers or partners of a mother or an adopter will be created which will allow them to be absent from work for a maximum of 26 weeks to care for a child.

This will be in addition to the current paternity leave entitlement (two weeks). It must be taken before the child’s 1st birthday.

APL is primarily intended to allow the mother to return to work after six months and the father (or partner) to take a more active part in childcare responsibilities in the first year of the child’s life.

APL will be unpaid. However a father will be entitled to additional paternity pay if the mother or adopter has not used up all of her entitlement to statutory maternity pay, maternity allowance or statutory adoption pay when she returns to work.

In other words, the unused balance of the SMP or SAP can be transferred to the father/partner to be used during the APL period.

How such a system would work in practice is unclear and guidance is awaited. We await specific details once the regulations have been published. Therefore, watch this space.

Although much of the detail is yet to be established, it is advisable that employers begin to think now about how these changes will be put in to practice so as not to be caught out at a later date.