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Employment Relations Act 1999

New section 75: Sections 71 to 73: supplemental

172.This new section further prescribes the scope of the powers conferred in the previous new sections for the Secretary of State to make regulations in respect of ordinary maternity leave, compulsory maternity leave and additional maternity leave. Subsection (1) provides that the regulations may:

  • (paragraph (a)): set out notice and evidential requirements and procedures to be followed. It is intended that an employee will be required to notify the employer of her pregnancy and the week the child is expected to be born, and if requested produce medical confirmation. Under the previous provisions, there are a number of different notification procedures required before maternity leave, after the birth (if required by the employer) and before return to work. This power is intended to be used to rationalise and standardise notice requirements where possible;

  • (paragraphs (b) and (c)): set out what happens if the notice requirements or procedures are not followed, or if either the employee or (if any notification requirements were placed on the employer) the employer fail to do what they have notified they will do. Under the original provisions a woman can lose her right to return to work if she fails to meet any of the procedural requirements, even where the employer is clear about the woman’s intentions, or if she cannot return to work on a date she has notified, for example because of sickness. Some respondents to Fairness at Work argued that losing one’s right to return to work was a disproportionate penalty for a technical infringement of the procedures. This provision would allow smaller penalties to be stipulated, for example the start or finishing date for maternity leave could be postponed until the required notice was served. Again, further consultation will inform how this power is to be used;

  • (paragraph (d)): set out what happens where the woman has a contractual as well as statutory right to maternity leave. This would enable reintroduction of the provisions in the original sections 78 and 85 of the 1996 Act, which allow the woman to choose whichever of her contractual or statutory rights is better in a particular respect;

  • (paragraph (e)): make consequential changes to the provisions which set out how to calculate ‘a week’s pay’ under the 1996 Act for the purposes of redundancy payments and compensation for unfair dismissal. This will enable the regulations to ensure that redundancy payments and compensation are based on an employees’ normal pay rather than any pay she received while on maternity leave;

  • (paragraph (f)): make consequential amendments; and

  • (paragraph (g)): make different provision for different cases or circumstances; this is a normal provision allowing some flexibility, and may be used, for example, to cover the situation where a late birth necessitates the extension of maternity leave (see under new section 72 above).

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