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Employment Relations Act 1999

New section 71: Ordinary maternity leave

160.New section 71 re-enacts the general right (in the original section 71 of the 1996 Act) of all pregnant employees, regardless of their length of service with an employer, to a period of maternity leave. It also replaces provisions in sections 72 to 76 with powers which will enable similar provisions to be made in regulations. The new provisions, like those they replace, will implement requirements of the Pregnant Workers Directive (Council Directive 92/85/EEC).

161.To distinguish it from other maternity leave periods provided for, the period of leave provided for in this new section is called the “ordinary maternity leave” period. As under the original provisions of the 1996 Act, during ordinary maternity leave the employee will be able to continue to receive the normal contractual and related benefits (including seniority and pension rights) due to her when she is working, other than her remuneration (new subsections (4) and (5)). She will also continue to be bound by contractual obligations such as confidentiality conditions (new subsection (4)(b)).

162.The Secretary of State is given powers to make regulations:

  • under new subsection (1), read with new section 75(2), prescribing conditions for qualifying for this right. As for the original right to 14 weeks’ leave under the 1996 Act, it is intended that the right will apply to all employees regardless of length of service;

  • under new subsections (2) and (3)(a), for the length of ordinary maternity leave, which must be not less than 18 weeks. The new entitlement will be to 18 weeks’ leave, increased from the entitlement of 14 weeks under the previous provisions, in line with the 18-week period for Statutory Maternity Pay (which is dealt with in social security legislation);

  • under new subsection (3)(b), which may allow employees to choose (as under the original provisions) when they want to start maternity leave, subject to restrictions the regulations may set. Parameters similar to those having effect under the original provisions are likely to be set: women can choose to start maternity leave any time from the eleventh week before the expected week of the birth; and maternity leave starts automatically if a woman is absent from work with pregnancy related illness in the six weeks prior to the birth, and at the latest when the baby is born; and

  • under new subsection (6), specifying what counts as remuneration. It is intended that the regulations should provide that remuneration is the monetary element of a woman’s salary or wages.

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