The Maternity and Parental Leave (Amendment) Regulations 2002

Explanatory Note

(This note is not part of the Regulations)

These Regulations amend provisions relating to maternity leave in the Maternity and Parental Leave etc. Regulations 1999 (S.I. 1999/3312), and also provisions in those Regulations concerning the right to return from parental leave. Some of the amendments concern provisions which implement (in part) provisions of Council Directive 92/85/EEC, relating to the safety and health of pregnant workers and workers who have recently given birth or are breastfeeding, and provisions of the Framework Agreement on Parental Leave annexed to Council Directive 96/34/EC.

The most significant changes are the extension of ordinary maternity leave from 18 to 26 weeks, and the extension of additional maternity leave so as to end 26 weeks from the end of ordinary maternity leave rather than 29 weeks after the week of childbirth (regulation 8(a) and (b)). An employee will qualify for additional maternity leave if she has been continuously employed for at least 26 weeks at the beginning of the 14th week before the expected week of childbirth (“e.w.c.”), rather than, as previously, at least a year at the beginning of the 11th week before the e.w.c. (regulation 6).

The 1999 Regulations are amended to provide for notification of the date on which an employee intends her ordinary maternity leave period to start to be given to the employer before the end of the fifteenth week before the e.w.c., rather than 21 days before the intended start date as previously; however, there is a new provision for the employee to change the date subsequently provided that her employer is given 28 days' notice (regulation 5). Absence from work on account of pregnancy will cause an employee’s ordinary maternity leave period to begin automatically if it is after the beginning of the fourth week before the e.w.c., rather than the sixth week before then as previously (regulation 7).

A new requirement is inserted for an employer notified of the commencement of an employee’s maternity leave to notify the employee of the date on which it will end (regulation 8(c)). If no such notification is given by the employer, he is unable to prevent the employee from returning early (regulation 10(c)), and the employee is protected against detriment or dismissal if she fails to return on the due date (regulations 13 and 14). The requirement in regulation 12 of the 1999 Regulations for an employee entitled to additional maternity leave to notify her employer, if so requested, whether she intends to return to work at the end of a period of additional maternity leave is removed (regulation 11).

Provision is made for all of the rights and obligations in an employee’s contract of employment, apart from the right to remuneration, to continue during an employee’s ordinary maternity leave period (regulation 9), and for the employee to return from an isolated period of ordinary maternity leave to the job in which she was employed before her absence (regulation 12, which substitutes new regulations 18 and 18A in the 1999 Regulations). Provision to the same effect was made by section 71 of the Employment Rights Act 1996, but that section was amended by section 17 of the Employment Act 2002 so as to provide for the extent to which rights and obligations continue to apply, and the kind of job to which an employee is entitled to return, to be determined in regulations.

Besides providing for the rights of an employee returning from an isolated period of ordinary maternity leave, the new regulations 18 and 18A of the 1999 Regulations make provision in respect of employees who return following ordinary maternity leave taken after another period of statutory leave. They carry forward provisions in the original regulation 18 concerning employees returning after additional maternity leave, and extend the provisions in that regulation concerning employees returning from parental leave so as to cover cases where such leave is taken after ordinary maternity leave, paternity leave or adoption leave.

A Regulatory Impact Assessment of the costs and benefits of these Regulations to business, and a Transposition Note explaining how certain of the provisions amended give effect to the directives referred to above, have been placed in the libraries of both Houses of Parliament. Copies are available to the public from the Employment Relations Directorate, Department of Trade and Industry, 1 Victoria Street, London SW1H 0ET and are also available at the Directorate’s website www.dti.gov.uk/er..