The Maternity and Parental Leave etc. Regulations 1999

PART 1 E+W+S GENERAL

Citation and commencement E+W+S

1.  These Regulations may be cited as the Maternity and Parental Leave etc. Regulations 1999 and shall come into force on 15th December 1999.

Interpretation E+W+S

2.—(1) In these Regulations—

• “the 1996 Act" means the Employment Rights Act 1996;

• [F1 "additional adoption leave" means leave under section 75B of the 1996 Act;]

• “additional maternity leave" means leave under section 73 of the 1996 Act;

• “business" includes a trade or profession and includes any activity carried on by a body of persons (whether corporate or unincorporated);

• “child" means a person under the age of eighteen;

• “childbirth" means the birth of a living child or the birth of a child whether living or dead after 24 weeks of pregnancy;

• “collective agreement" means a collective agreement within the meaning of section 178 of the Trade Union and Labour Relations (Consolidation) Act 1992 M1 , the trade union parties to which are independent trade unions within the meaning of section 5 of that Act;

• “contract of employment" means a contract of service or apprenticeship, whether express or implied, and (if it is express) whether oral or in writing;

• “disability living allowance" means the disability living allowance provided for in Part III of the Social Security Contributions and Benefits Act 1992 M2 ;

• “employee" means an individual who has entered into or works under (or, where the employment has ceased, worked under) a contract of employment;

• “employer" means the person by whom an employee is (or, where the employment has ceased, was) employed;

• “expected week of childbirth" means the week, beginning with midnight between Saturday and Sunday, in which it is expected that childbirth will occur, and “week of childbirth" means the week, beginning with midnight between Saturday and Sunday, in which childbirth occurs;

• “job", in relation to an employee returning after F2 ... maternity leave or parental leave, means the nature of the work which she is employed to do in accordance with her contract and the capacity and place in which she is so employed;

• “ordinary maternity leave" means leave under section 71 of the 1996 Act;

• “parental leave" means leave under regulation 13(1);

• “parental responsibility" has the meaning given by section 3 of the Children Act 1989 M3 , and “parental responsibilities" has the meaning given by section 1(3) of the Children (Scotland) Act 1995 M4 ;

• [F3 "statutory leave" means leave provided for in Part 8 of the 1996 Act;]

• “workforce agreement" means an agreement between an employer and his employees or their representatives in respect of which the conditions set out in Schedule 1 to these Regulations are satisfied.

(2) A reference in any provision of these Regulations to a period of continuous employment is to a period computed in accordance with Chapter I of Part XIV of the 1996 Act, as if that provision were a provision of that Act.

(3) For the purposes of these Regulations any two employers shall be treated as associated if—

(a) one is a company of which the other (directly or indirectly) has control; or

(b) both are companies of which a third person (directly or indirectly) has control;

and “associated employer" shall be construed accordingly.

(4) In these Regulations, unless the context otherwise requires,—

(a) a reference to a numbered regulation or schedule is to the regulation or schedule in these Regulations bearing that number;

(b) a reference in a regulation or schedule to a numbered paragraph is to the paragraph in that regulation or schedule bearing that number, and

(c) a reference in a paragraph to a lettered sub-paragraph is to the sub-paragraph in that paragraph bearing that letter.

Textual Amendments

F1 Words in reg. 2(1) inserted (24.11.2002) by The Maternity and Parental Leave (Amendment) Regulations 2002 (S.I. 2002/2789), regs. 1(1), 4(a)

F2 Word in reg. 2(1) omitted (24.11.2002) by virtue of The Maternity and Parental Leave (Amendment) Regulations 2002 (S.I. 2002/2789), regs. 1(1), 4(b)

F3 Words in reg. 2(1) inserted (24.11.2002) by The Maternity and Parental Leave (Amendment) Regulations 2002 (S.I. 2002/2789), regs. 1(1), 4(c)

Marginal Citations

M1 1992 c. 52.

M2 1992 c. 4.

M3 1989 c. 41.

M4 1995 c. 36.

Application E+W+S

3.—(1) The provisions of Part II of these Regulations have effect only in relation to employees whose expected week of childbirth begins on or after 30th April 2000.

(2) Regulation 19 (protection from detriment) has effect only in relation to an act or failure to act which takes place on or after 15th December 1999.

(3) For the purposes of paragraph (2)—

(a) where an act extends over a period, the reference to the date of the act is a reference to the last day of that period, and

(b) a failure to act is to be treated as done when it was decided on.

(4) For the purposes of paragraph (3), in the absence of evidence establishing the contrary an employer shall be taken to decide on a failure to act—

(a) when he does an act inconsistent with doing the failed act, or

(b) if he has done no such inconsistent act, when the period expires within which he might reasonably have been expected to do the failed act if it was to be done.

(5) Regulation 20 (unfair dismissal) has effect only in relation to dismissals where the effective date of termination (within the meaning of section 97 of the 1996 Act) falls on or after 15th December 1999.

PART II E+W+S MATERNITY LEAVE

Entitlement to ordinary maternity leave E+W+S

4.—(1) An employee is entitled to ordinary maternity leave provided that she satisfies the following conditions—

(a) [F4 no later than the end of the fifteenth week before her expected week of childbirth], or, if that is not reasonably practicable, as soon as is reasonably practicable, she notifies her employer of—

(i) her pregnancy;

(ii) the expected week of childbirth, and

(iii) the date on which she intends her ordinary maternity leave period to start,

and

(b) if requested to do so by her employer, she produces for his inspection a certificate from—

(i) a registered medical practitioner, or

(ii) a registered midwife,

stating the expected week of childbirth.

[F5 (1A) An employee who has notified her employer under paragraph (1)(a)(iii) of the date on which she intends her ordinary maternity leave period to start may subsequently vary that date, provided that she notifies her employer of the variation at least—

(a) 28 days before the date varied, or

(b) 28 days before the new date,

whichever is the earlier, or, if that is not reasonably practicable, as soon as is reasonably practicable.]

(2) [F6 Notification under paragraph (1)(a)(iii) or (1A)]—

(a) shall be given in writing, if the employer so requests, and

(b) shall not specify a date earlier than the beginning of the eleventh week before the expected week of childbirth.

(3) Where, by virtue of regulation 6(1)(b), an employee’s ordinary maternity leave period commences with [F7 the day which follows] the first day after the beginning of [F8 the fourth week] before the expected week of childbirth on which she is absent from work wholly or partly because of pregnancy—

(a) paragraph (1) does not require her to notify her employer of the date specified in that paragraph, but

(b) (whether or not she has notified him of that date) she is not entitled to ordinary maternity leave unless she notifies him as soon as is reasonably practicable that she is absent from work wholly or partly because of pregnancy [F9 and of the date on which her absence on that account began].

(4) Where, by virtue of regulation 6(2), an employee’s ordinary maternity leave period commences [F10 on the day which follows] the day on which childbirth occurs—

(a) paragraph (1) does not require her to notify her employer of the date specified in that paragraph, but

(b) (whether or not she has notified him of that date) she is not entitled to ordinary maternity leave unless she notifies him as soon as is reasonably practicable after the birth that she has given birth [F11 and of the date on which the birth occurred].

(5) The notification provided for in paragraphs (3)(b) and (4)(b) shall be given in writing, if the employer so requests.

Textual Amendments

F4 Words in reg. 4(1)(a) substituted (24.11.2002 with effect in accordance with reg. 2(1) of the amending S.I.) by The Maternity and Parental Leave (Amendment) Regulations 2002 (S.I. 2002/2789), regs. 1(1), 5(a)

F5 Reg. 4(1A) inserted (24.11.2002 with effect in accordance with reg. 2(1) of the amending S.I.) by The Maternity and Parental Leave (Amendment) Regulations 2002 (S.I. 2002/2789), regs. 1(1), 5(b)

F6 Words in reg. 4(2) substituted (24.11.2002 with effect in accordance with reg. 2(1) of the amending S.I.) by The Maternity and Parental Leave (Amendment) Regulations 2002 (S.I. 2002/2789), regs. 1(1), 5(c)

F7 Words in reg. 4(3) inserted (24.11.2002 with effect in accordance with reg. 2(1) of the amending S.I.) by The Maternity and Parental Leave (Amendment) Regulations 2002 (S.I. 2002/2789), regs. 1(1), 5(d)(i)

F8 Words in reg. 4(3) substituted (24.11.2002 with effect in accordance with reg. 2(1) of the amending S.I.) by The Maternity and Parental Leave (Amendment) Regulations 2002 (S.I. 2002/2789), regs. 1(1), 5(d)(ii)

F9 Words in reg. 4(3)(b) inserted (24.11.2002 with effect in accordance with reg. 2(1) of the amending S.I.) by The Maternity and Parental Leave (Amendment) Regulations 2002 (S.I. 2002/2789), regs. 1(1), 5(d)(iii)

F10 Words in reg. 4(4) substituted (24.11.2002 with effect in accordance with reg. 2(1) of the amending S.I.) by The Maternity and Parental Leave (Amendment) Regulations 2002 (S.I. 2002/2789), regs. 1(1), 5(e)(i)

F11 Words in reg. 4(4)(b) inserted (24.11.2002 with effect in accordance with reg. 2(1) of the amending S.I.) by The Maternity and Parental Leave (Amendment) Regulations 2002 (S.I. 2002/2789), regs. 1(1), 5(e)(ii)

Entitlement to additional maternity leave E+W+S

5.  An employee who satisfies the following conditions is entitled to additional maternity leave—

(a) she is entitled to ordinary maternity leave, and

(b) she has, at the beginning of [F12 the fourteenth week] before the expected week of childbirth, been continuously employed for a period of not less than [F13 26 weeks].

Textual Amendments

F12 Words in reg. 5(b) substituted (24.11.2002 with effect in accordance with reg. 2(1) of the amending S.I.) by The Maternity and Parental Leave (Amendment) Regulations 2002 (S.I. 2002/2789), regs. 1(1), 6(a)

F13 Words in reg. 5(b) substituted (24.11.2002 with effect in accordance with reg. 2(1) of the amending S.I.) by The Maternity and Parental Leave (Amendment) Regulations 2002 (S.I. 2002/2789), regs. 1(1), 6(b)

Commencement of maternity leave periods E+W+S

6.—(1) Subject to paragraph (2), an employee’s ordinary maternity leave period commences with the earlier of—

(a) the date which F14 ... she notifies to her employer [F15 , in accordance with regulation 4,] as the date on which she intends her ordinary maternity leave period to start, [F16 or, if by virtue of the provision for variation in that regulation she has notified more than one such date, the last date she notifies,] and

(b) [F17 the day which follows] the first day after the beginning of [F18 the fourth week] before the expected week of childbirth on which she is absent from work wholly or partly because of pregnancy.

(2) Where the employee’s ordinary maternity leave period has not commenced by virtue of paragraph (1) when childbirth occurs, her ordinary maternity leave period commences [F19 on the day which follows] the day on which childbirth occurs.

(3) An employee’s additional maternity leave period commences on the day after the last day of her ordinary maternity leave period.

Textual Amendments

F14 Words in reg. 6(1)(a) omitted (24.11.2002 with effect in accordance with reg. 2(1) of the amending S.I.) by virtue of The Maternity and Parental Leave (Amendment) Regulations 2002 (S.I. 2002/2789), regs. 1(1), 7(a)(i)

F15 Words in reg. 6(1)(a) inserted (24.11.2002 with effect in accordance with reg. 2(1) of the amending S.I.) by The Maternity and Parental Leave (Amendment) Regulations 2002 (S.I. 2002/2789), regs. 1(1), 7(a)(ii)

F16 Words in reg. 6(1)(a) inserted (24.11.2002 with effect in accordance with reg. 2(1) of the amending S.I.) by The Maternity and Parental Leave (Amendment) Regulations 2002 (S.I. 2002/2789), regs. 1(1), 7(a)(iii)

F17 Words in reg. 6(1)(b) inserted (24.11.2002 with effect in accordance with reg. 2(1) of the amending S.I.) by The Maternity and Parental Leave (Amendment) Regulations 2002 (S.I. 2002/2789), regs. 1(1), 7(b)(i)

F18 Words in reg. 6(1)(b) substituted (24.11.2002 with effect in accordance with reg. 2(1) of the amending S.I.) by The Maternity and Parental Leave (Amendment) Regulations 2002 (S.I. 2002/2789), regs. 1(1), 7(b)(ii)

F19 Words in reg. 6(2) substituted (24.11.2002 with effect in accordance with reg. 2(1) of the amending S.I.) by The Maternity and Parental Leave (Amendment) Regulations 2002 (S.I. 2002/2789), regs. 1(1), 7(c)

Duration of maternity leave periods E+W+S

7.—(1) Subject to paragraphs (2) and (5), an employee’s ordinary maternity leave period continues for the period of [F20 26 weeks] from its commencement, or until the end of the compulsory maternity leave period provided for in regulation 8 if later.

(2) Subject to paragraph (5), where any requirement imposed by or under any relevant statutory provision prohibits the employee from working for any period after the end of the period determined under paragraph (1) by reason of her having recently given birth, her ordinary maternity leave period continues until the end of that later period.

(3) In paragraph (2), “relevant statutory provision" means a provision of—

(a) an enactment, or

(b) an instrument under an enactment,

other than a provision for the time being specified in an order under section 66(2) of the 1996 Act.

(4) Subject to paragraph (5), where an employee is entitled to additional maternity leave her additional maternity leave period continues until the end of the period of [F21 26 weeks from the day on which it commenced].

(5) Where the employee is dismissed after the commencement of an ordinary or additional maternity leave period but before the time when (apart from this paragraph) that period would end, the period ends at the time of the dismissal.

[F22 (6) An employer who is notified under any provision of regulation 4 of the date on which, by virtue of any provision of regulation 6, an employee’s ordinary maternity leave period will commence or has commenced shall notify the employee of the date on which—

(a) if the employee is entitled only to ordinary maternity leave, her ordinary maternity leave period will end, or

(b) if the employee is entitled to both ordinary and additional maternity leave, her additional maternity leave period will end.

(7) The notification provided for in paragraph (6) shall be given to the employee—

(a) where the employer is notified under regulation 4(1)(a)(iii), (3)(b) or (4)(b), within 28 days of the date on which he received the notification;

(b) where the employer is notified under regulation 4(1A), within 28 days of the date on which the employee’s ordinary maternity leave period commenced.]

Textual Amendments

F20 Words in reg. 7(1) substituted (24.11.2002 with effect in accordance with reg. 2(1) of the amending S.I.) by The Maternity and Parental Leave (Amendment) Regulations 2002 (S.I. 2002/2789), regs. 1(1), 8(a)

F21 Words in reg. 7(4) substituted (24.11.2002 with effect in accordance with reg. 2(1) of the amending S.I.) by The Maternity and Parental Leave (Amendment) Regulations 2002 (S.I. 2002/2789), regs. 1(1), 8(b)

F22 Reg. 7(6)(7) inserted (24.11.2002 with effect in accordance with reg. 2(1) of the amending S.I.) by The Maternity and Parental Leave (Amendment) Regulations 2002 (S.I. 2002/2789), regs. 1(1), 8(c)

Compulsory maternity leave E+W+S

8.  The prohibition in section 72 of the 1996 Act, against permitting an employee who satisfies prescribed conditions to work during a particular period (referred to as a “compulsory maternity leave period"), applies—

(a) in relation to an employee who is entitled to ordinary maternity leave, and

(b) in respect of the period of two weeks which commences with the day on which childbirth occurs.

[F23 Application of terms and conditions during ordinary maternity leave E+W+S

9.— (1) An employee who takes ordinary maternity leave—

(a) is entitled, during the period of leave, to the benefit of all of the terms and conditions of employment which would have applied if she had not been absent, and

(b) is bound, during that period, by any obligations arising under those terms and conditions, subject only to the exception in section 71(4)(b) of the 1996 Act.

(2) In paragraph (1)(a), “terms and conditions” has the meaning given by section 71(5) of the 1996 Act, and accordingly does not include terms and conditions about remuneration.

(3) For the purposes of section 71 of the 1996 Act, only sums payable to an employee by way of wages or salary are to be treated as remuneration.]

Textual Amendments

F23 Reg. 9 substituted (24.11.2002 with effect in accordance with reg. 2(1) of the amending S.I.) by The Maternity and Parental Leave (Amendment) Regulations 2002 (S.I. 2002/2789), regs. 1(1), 9

Redundancy during maternity leave E+W+S

10.—(1) This regulation applies where, during an employee’s ordinary or additional maternity leave period, it is not practicable by reason of redundancy for her employer to continue to employ her under her existing contract of employment.

(2) Where there is a suitable available vacancy, the employee is entitled to be offered (before the end of her employment under her existing contract) alternative employment with her employer or his successor, or an associated employer, under a new contract of employment which complies with paragraph (3) (and takes effect immediately on the ending of her employment under the previous contract).

(3) The new contract of employment must be such that—

(a) the work to be done under it is of a kind which is both suitable in relation to the employee and appropriate for her to do in the circumstances, and

(b) its provisions as to the capacity and place in which she is to be employed, and as to the other terms and conditions of her employment, are not substantially less favourable to her than if she had continued to be employed under the previous contract.

Requirement to notify intention to return during a maternity leave period E+W+S

11.—(1) An employee who intends to return to work earlier than the end of her ordinary maternity leave period or, where she is entitled to [F24 both ordinary and] additional maternity leave, the end of her additional maternity leave period, shall give to her employer not less than [F25 28 days]’ notice of the date on which she intends to return.

(2) If an employee attempts to return to work earlier than the end of a maternity leave period without complying with paragraph (1), her employer is entitled to postpone her return to a date such as will secure, subject to paragraph (3), that he has [F26 28 days]’ notice of her return.

(3) An employer is not entitled under paragraph (2) to postpone an employee’s return to work to a date after the end of the relevant maternity leave period.

(4) If an employee whose return to work has been postponed under paragraph (2) has been notified that she is not to return to work before the date to which her return was postponed, the employer is under no contractual obligation to pay her remuneration until the date to which her return was postponed if she returns to work before that date.

[F27 (5) This regulation does not apply in a case where the employer did not notify the employee in accordance with regulation 7(6) and (7) of the date on which the relevant maternity leave period would end.]

Textual Amendments

F24 Words in reg. 11(1) inserted (24.11.2002 with effect in accordance with reg. 2(1) of the amending S.I.) by The Maternity and Parental Leave (Amendment) Regulations 2002 (S.I. 2002/2789), regs. 1(1), 10(a)(i)

F25 Words in reg. 11(1) substituted (24.11.2002 with effect in accordance with reg. 2(1) of the amending S.I.) by The Maternity and Parental Leave (Amendment) Regulations 2002 (S.I. 2002/2789), regs. 1(1), 10(a)(ii)

F26 Words in reg. 11(2) substituted (24.11.2002 with effect in accordance with reg. 2(1) of the amending S.I.) by The Maternity and Parental Leave (Amendment) Regulations 2002 (S.I. 2002/2789), regs. 1(1), 10(b)

F27 Reg. 11(5) inserted (24.11.2002 with effect in accordance with reg. 2(1) of the amending S.I.) by The Maternity and Parental Leave (Amendment) Regulations 2002 (S.I. 2002/2789), regs. 1(1), 10(c)

Requirement to notify intention to return after additional maternity leave E+W+S

F28 12.  . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Textual Amendments

F28 Reg. 12 omitted (24.11.2002 with effect in accordance with reg. 2(1) of the amending S.I.) by virtue of The Maternity and Parental Leave (Amendment) Regulations 2002 (S.I. 2002/2789), regs. 1(1), 11

PART III E+W+S PARENTAL LEAVE

Entitlement to parental leave E+W+S

13.—(1) An employee who—

(a) has been continuously employed for a period of not less than a year [F29 or is to be treated as having been so employed by virtue of paragraph (1A)]; and

(b) has, or expects to have, responsibility for a child,

is entitled, in accordance with these Regulations, to be absent from work on parental leave for the purpose of caring for that child.

[F30 (1A) If, in a case where regulation 15(2) or (3) applies—

(a) the employee was employed, during the period between 15th December 1998 and 9th January 2002, by a person other than the person who was his employer on 9th January 2002, and

(b) the period of his employment by that person (or, if he was employed by more than one person during that period, any such person) was not less than a year,

then, for the purposes of paragraph (1), he shall be treated as having been continuously employed for a period of not less than a year.]

(2) An employee has responsibility for a child, for the purposes of paragraph (1), if—

(a) he has parental responsibility or, in Scotland, parental responsibilities for the child; or

(b) he has been registered as the child’s father under any provision of section 10(1) or 10A(1) of the Births and Deaths Registration Act 1953 M5 or of section 18(1) or (2) of the Registration of Births, Deaths and Marriages (Scotland) Act 1965 M6 .

F31 (3) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Textual Amendments

F29 Words in reg. 13(1)(a) inserted (10.1.2002) by The Maternity and Parental Leave (Amendment) Regulations 2001 (S.I. 2001/4010), regs. 1(1), 3(a)

F30 Reg. 13(1A) inserted (10.1.2002) by The Maternity and Parental Leave (Amendment) Regulations 2001 (S.I. 2001/4010), regs. 1(1), 3(b)

F31 Reg. 13(3) omitted (10.1.2002) by virtue of The Maternity and Parental Leave (Amendment) Regulations 2001 (S.I. 2001/4010), regs. 1(1), 3(c)

Marginal Citations

M5 1953 c. 20; sections 10 and 10A were substituted by the Family Law Reform Act 1987 (c. 42), sections 24 and 25.

M6 1965 c. 49; section 18(1) was substituted, and section 18(2) amended, by the Law Reform (Parent and Child) (Scotland) Act 1986 (c. 9).

Extent of entitlement E+W+S

14.—(1)  [F32 Except in the case referred to in paragraph (1A), an employee is entitled] to thirteen weeks’ leave in respect of any individual child.

[F33 (1A) An employee is entitled to eighteen weeks' leave in respect of a child who is entitled to a disability living allowance.]

(2) Where the period for which an employee is normally required, under his contract of employment, to work in the course of a week does not vary, a week’s leave for the employee is a period of absence from work which is equal in duration to the period for which he is normally required to work.

(3) Where the period for which an employee is normally required, under his contract of employment, to work in the course of a week varies from week to week or over a longer period, or where he is normally required under his contract to work in some weeks but not in others, a week’s leave for the employee is a period of absence from work which is equal in duration to the period calculated by dividing the total of the periods for which he is normally required to work in a year by 52.

(4) Where an employee takes leave in periods shorter than the period which constitutes, for him, a week’s leave under whichever of paragraphs (2) and (3) is applicable in his case, he completes a week’s leave when the aggregate of the periods of leave he has taken equals the period constituting a week’s leave for him under the applicable paragraph.

Textual Amendments

F32 Words in reg. 14(1) substituted (10.1.2002) by The Maternity and Parental Leave (Amendment) Regulations 2001 (S.I. 2001/4010), regs. 1(1), 4(a)

F33 Reg. 14(1A) inserted (10.1.2002) by The Maternity and Parental Leave (Amendment) Regulations 2001 (S.I. 2001/4010), regs. 1(1), 4(b)

When parental leave may be taken E+W+S

[F34 15.— (1) Except in the cases referred to in paragraphs (2)–(4), an employee may not exercise any entitlement to parental leave in respect of a child after the date of the child’s fifth birthday or, in the case of a child placed with the employee for adoption by him, on or after—

(a) the fifth anniversary of the date on which the placement began, or

(b) the date of the child’s eighteenth birthday,

whichever is the earlier.

(2) In the case of child—

(a) born before 15th December 1999, whose fifth birthday was or is on or after that date, or

(b) placed with the employee for adoption by him before 15th December 1999, the fifth anniversary of whose placement was or is on or after that date,

not being a case to which paragraph (3) or (4) applies, any entitlement to parental leave may not be exercised after 31st March 2005.

(3) In the case of a child who is entitled to a disability living allowance, any entitlement to parental leave may not be exercised on or after the date of the child’s eighteenth birthday.

(4) In a case where—

(a) the provisions set out in Schedule 2 apply, and

(b) the employee was unable to take leave in respect of a child within the time permitted in the case of that child under paragraphs (1) or (2) because the employer postponed the period of leave under paragraph 6 of that Schedule,

the entitlement to leave is exercisable until the end of the period to which the leave was postponed.]

Textual Amendments

F34 Reg. 15 substituted (10.1.2002) by The Maternity and Parental Leave (Amendment) Regulations 2001 (S.I. 2001/4010), regs. 1(1), 5

Default provisions in respect of parental leave E+W+S

16.  The provisions set out in Schedule 2 apply in relation to parental leave in the case of an employee whose contract of employment does not include a provision which—

(a) confers an entitlement to absence from work for the purpose of caring for a child, and

(b) incorporates or operates by reference to all or part of a collective agreement or workforce agreement.

PART IV E+W+S PROVISIONS APPLICABLE IN RELATION TO MORE THAN ONE KIND OF ABSENCE

Application of terms and conditions during periods of leave E+W+S

17.  An employee who takes additional maternity leave or parental leave—

(a) is entitled, during the period of leave, to the benefit of her employer’s implied obligation to her of trust and confidence and any terms and conditions of her employment relating to—

(i) notice of the termination of the employment contract by her employer;

(ii) compensation in the event of redundancy, or

(iii) disciplinary or grievance procedures;

(b) is bound, during that period, by her implied obligation to her employer of good faith and any terms and conditions of her employment relating to—

(i) notice of the termination of the employment contract by her;

(ii) the disclosure of confidential information;

(iii) the acceptance of gifts or other benefits, or

(iv) the employee’s participation in any other business.

[F35 Right to return after maternity or parental leave E+W+S

18.— (1) An employee who returns to work after a period of ordinary maternity leave, or a period of parental leave of four weeks or less, which was—

(a) an isolated period of leave, or

(b) the last of two or more consecutive periods of statutory leave which did not include any period of additional maternity leave or additional adoption leave, or a period of parental leave of more than four weeks,

is entitled to return to the job in which she was employed before her absence.

(2) An employee who returns to work after—

(a) a period of additional maternity leave, or a period of parental leave of more than four weeks, whether or not preceded by another period of statutory leave, or

(b) a period of ordinary maternity leave, or a period of parental leave of four weeks or less, not falling within the description in paragraph (1)(a) or (b) above,

is entitled to return from leave to the job in which she was employed before her absence or, if it is not reasonably practicable for the employer to permit her to return to that job, to another job which is both suitable for her and appropriate for her to do in the circumstances.

(3) The reference in paragraphs (1) and (2) to the job in which an employee was employed before her absence is a reference to the job in which she was employed—

(a) if her return is from an isolated period of statutory leave, immediately before that period began;

(b) if her return is from consecutive periods of statutory leave, immediately before the first such period.

(4) This regulation does not apply where regulation 10 applies.]

Textual Amendments

F35 Regs. 18, 18A substituted for reg. 18 (24.11.2002 with effect in accordance with reg. 2 of the amending S.I.) by The Maternity and Parental Leave (Amendment) Regulations 2002 (S.I. 2002/2789), regs. 1(1), 12

[F35 Incidents of the right to return E+W+S

18A.— (1) An employee’s right to return under regulation 18(1) or (2) is a right to return—

(a) with her seniority, pension rights and similar rights—

(i) in a case where the employee is returning from additional maternity leave, or consecutive periods of statutory leave which included a period of additional maternity leave or additional adoption leave, as they would have been if the period or periods of her employment prior to her additional maternity leave or (as the case may be) additional adoption leave were continuous with the period of employment following it;

(ii) in any other case, as they would have been if she had not been absent, and

(b) on terms and conditions not less favourable than those which would have applied if she had not been absent.

(2) The provision in paragraph (1)(a)(i) concerning the treatment of periods of additional maternity leave or additional adoption leave is subject to the requirements of paragraphs 5 and 6 of Schedule 5 to the Social Security Act 1989 (equal treatment under pension schemes: maternity absence and family leave).

(3) The provisions in paragraph (1)(a)(ii) and (b) for an employee to be treated as if she had not been absent refer to her absence—

(a) if her return is from an isolated period of statutory leave, since the beginning of that period;

(b) if her return is from consecutive periods of statutory leave, since the beginning of the first such period.]

Textual Amendments

F35 Regs. 18, 18A substituted for reg. 18 (24.11.2002 with effect in accordance with reg. 2 of the amending S.I.) by The Maternity and Parental Leave (Amendment) Regulations 2002 (S.I. 2002/2789), regs. 1(1), 12

Protection from detriment E+W+S

19.—(1) An employee is entitled under section 47C of the 1996 Act not to be subjected to any detriment by any act, or any deliberate failure to act, by her employer done for any of the reasons specified in paragraph (2).

(2) The reasons referred to in paragraph (1) are that the employee—

(a) is pregnant;

(b) has given birth to a child;

(c) is the subject of a relevant requirement, or a relevant recommendation, as defined by section 66(2) of the 1996 Act;

(d) took, sought to take or availed herself of the benefits of, ordinary maternity leave;

(e) took or sought to take—

(i) additional maternity leave;

(ii) parental leave, or

(iii) time off under section 57A of the 1996 Act;

[F36 (ee) failed to return after a period of ordinary or additional maternity leave in a case where—

(i) the employer did not notify her, in accordance with regulation 7(6) and (7) or otherwise, of the date on which the period in question would end, and she reasonably believed that that period had not ended, or

(ii) the employer gave her less than 28 days' notice of the date on which the period in question would end, and it was not reasonably practicable for her to return on that date;]

(f) declined to sign a workforce agreement for the purpose of these Regulations, or

(g) being—

(i) a representative of members of the workforce for the purposes of Schedule 1, or

(ii) a candidate in an election in which any person elected will, on being elected, become such a representative,

performed (or proposed to perform) any functions or activities as such a representative or candidate.

(3) For the purposes of paragraph (2)(d), a woman avails herself of the benefits of ordinary maternity leave if, during her ordinary maternity leave period, she avails herself of the benefit of any of the terms and conditions of her employment preserved by section 71 of the 1996 Act [F37 and regulation 9] during that period.

(4) Paragraph (1) does not apply in a case where the detriment in question amounts to dismissal within the meaning of Part X of the 1996 Act.

(5) Paragraph (2)(b) only applies where the act or failure to act takes place during the employee’s ordinary or additional maternity leave period.

(6) For the purposes of paragraph (5)—

(a) where an act extends over a period, the reference to the date of the act is a reference to the last day of that period, and

(b) a failure to act is to be treated as done when it was decided on.

(7) For the purposes of paragraph (6), in the absence of evidence establishing the contrary an employer shall be taken to decide on a failure to act—

(a) when he does an act inconsistent with doing the failed act, or

(b) if he has done no such inconsistent act, when the period expires within which he might reasonably have been expected to do the failed act if it were to be done.

Textual Amendments

F36 Reg. 19(2)(ee) inserted (24.11.2002) by The Maternity and Parental Leave (Amendment) Regulations 2002 (S.I. 2002/2789), regs. 1(1), 13(a)

F37 Words in reg. 19(3) inserted (24.11.2002) by The Maternity and Parental Leave (Amendment) Regulations 2002 (S.I. 2002/2789), regs. 1(1), 13(b)

Unfair dismissal E+W+S

20.—(1) An employee who is dismissed is entitled under section 99 of the 1996 Act to be regarded for the purposes of Part X of that Act as unfairly dismissed if—

(a) the reason or principal reason for the dismissal is of a kind specified in paragraph (3), or

(b) the reason or principal reason for the dismissal is that the employee is redundant, and regulation 10 has not been complied with.

(2) An employee who is dismissed shall also be regarded for the purposes of Part X of the 1996 Act as unfairly dismissed if—

(a) the reason (or, if more than one, the principal reason) for the dismissal is that the employee was redundant;

(b) it is shown that the circumstances constituting the redundancy applied equally to one or more employees in the same undertaking who held positions similar to that held by the employee and who have not been dismissed by the employer, and

(c) it is shown that the reason (or, if more than one, the principal reason) for which the employee was selected for dismissal was a reason of a kind specified in paragraph (3).

(3) The kinds of reason referred to in paragraphs (1) and (2) are reasons connected with—

(a) the pregnancy of the employee;

(b) the fact that the employee has given birth to a child;

(c) the application of a relevant requirement, or a relevant recommendation, as defined by section 66(2) of the 1996 Act;

(d) the fact that she took, sought to take or availed herself of the benefits of, ordinary maternity leave;

(e) the fact that she took or sought to take—

(i) additional maternity leave;

(ii) parental leave, or

(iii) time off under section 57A of the 1996 Act;

[F38 (ee) the fact that she failed to return after a period of ordinary or additional maternity leave in a case where—

(i) the employer did not notify her, in accordance with regulation 7(6) and (7) or otherwise, of the date on which the period in question would end, and she reasonably believed that that period had not ended, or

(ii) the employer gave her less than 28 days' notice of the date on which the period in question would end, and it was not reasonably practicable for her to return on that date;]

(f) the fact that she declined to sign a workforce agreement for the purposes of these Regulations, or

(g) the fact that the employee, being—

(i) a representative of members of the workforce for the purposes of Schedule 1, or

(ii) a candidate in an election in which any person elected will, on being elected, become such a representative,

performed (or proposed to perform) any functions or activities as such a representative or candidate.

(4) Paragraphs (1)(b) and (3)(b) only apply where the dismissal ends the employee’s ordinary or additional maternity leave period.

(5) Paragraph (3) of regulation 19 applies for the purposes of paragraph (3)(d) as it applies for the purpose of paragraph (2)(d) of that regulation.

(6) Paragraph (1) does not apply in relation to an employee if—

(a) immediately before the end of her additional maternity leave period (or, if it ends by reason of dismissal, immediately before the dismissal) the number of employees employed by her employer, added to the number employed by any associated employer of his, did not exceed five, and

(b) it is not reasonably practicable for the employer (who may be the same employer or a successor of his) to permit her to return to a job which is both suitable for her and appropriate for her to do in the circumstances or for an associated employer to offer her a job of that kind.

(7) Paragraph (1) does not apply in relation to an employee if—

(a) it is not reasonably practicable for a reason other than redundancy for the employer (who may be the same employer or a successor of his) to permit her to return to a job which is both suitable for her and appropriate for her to do in the circumstances;

(b) an associated employer offers her a job of that kind, and

(c) she accepts or unreasonably refuses that offer.

(8) Where on a complaint of unfair dismissal any question arises as to whether the operation of paragraph (1) is excluded by the provisions of paragraph (6) or (7), it is for the employer to show that the provisions in question were satisfied in relation to the complainant.

Textual Amendments

F38 Reg. 20(3)(ee) inserted (24.11.2002) by The Maternity and Parental Leave (Amendment) Regulations 2002 (S.I. 2002/2789), regs. 1(1), 14

Contractual rights to maternity or parental leave E+W+S

21.—(1) This regulation applies where an employee is entitled to—

(a) ordinary maternity leave;

(b) additional maternity leave, or

(c) parental leave,

(referred to in paragraph (2) as a “statutory right") and also to a right which corresponds to that right and which arises under the employee’s contract of employment or otherwise.

(2) In a case where this regulation applies—

(a) the employee may not exercise the statutory right and the corresponding right separately but may, in taking the leave for which the two rights provide, take advantage of whichever right is, in any particular respect, the more favourable, and

(b) the provisions of the 1996 Act and of these Regulations relating to the statutory right apply, subject to any modifications necessary to give effect to any more favourable contractual terms, to the exercise of the composite right described in sub-paragraph (a) as they apply to the exercise of the statutory right.

Calculation of a week’s pay E+W+S

22.  Where—

(a) under Chapter II of part XIV of the 1996 Act, the amount of a week’s pay of an employee falls to be calculated by reference to the average rate of remuneration, or the average amount of remuneration, payable to the employee in respect of a period of twelve weeks ending on a particular date (referred to as “the calculation date");

(b) during a week in that period, the employee was absent from work on ordinary or additional maternity leave or parental leave, and

(c) remuneration is payable to the employee in respect of that week under her contract of employment, but the amount payable is less than the amount that would be payable if she were working,

that week shall be disregarded for the purpose of the calculation and account shall be taken of remuneration in earlier weeks so as to bring up to twelve the number of weeks of which account is taken.

Stephen Byers

Secretary of State for Trade and Industry