The Maternity and Parental Leave etc. and the Paternity and Adoption Leave (Amendment) Regulations 2006

Explanatory Note

(This note is not part of the Regulations)

These Regulations amend provisions in two statutory instruments relating to statutory maternity leave and adoption leave.

The amendments have effect in relation to an employee whose expected week of childbirth is on or after 1st April 2007, an employee whose child is expected to be placed with him for adoption by that date or, in cases of overseas adoption as defined in the Paternity and Adoption Leave (Adoption from Overseas) Regulations 2003 (S.I. 2003/921) (the 2003 Regulations), an adopter whose child enters Great Britain on or after that same date: 1st April 2007.

The Regulations amended are the Maternity and Parental Leave etc. Regulations 1999 (S.I. 1999/3312) (the Maternity and Parental Leave Regulations) as amended by the Maternity and Parental Leave (Amendment) Regulations 2001 (S.I. 2001/4010) and the Maternity and Parental Leave (Amendment) Regulations 2002 (S.I. 2002/2789), and the Paternity and Adoption Leave Regulations 2002 (S.I. 2002/2788) (the Paternity and Adoption Leave Regulations) as amended by the Paternity and Adoption Leave (Amendment) Regulations 2004 (S.I. 2004/923).

As the Paternity and Adoption Leave Regulations apply to overseas adoptions subject to the modifications set out in the 2003 Regulations and the changes being made to the Paternity and Adoption Leave Regulations do not affect these modifications, they shall apply to adoptions from overseas without additional amendments being required to the 2003 Regulations.

Regulations 5 to 7 remove the additional length of service qualifying condition for additional maternity leave. An employee who qualifies for ordinary maternity leave will now also qualify for additional maternity leave.

Regulation 8 extends the period of notice which the employee is required to give to the employer of her intention to return to work earlier than the end of her additional maternity leave from 28 days to 8 weeks. The time period is similarly extended from 28 days to 8 weeks in circumstances where the employer delays the employee’s return due to the employee’s failure to comply with the notification requirements in regulation 11(1). Regulation 15 similarly extends these periods of notice in respect of an employee who intends to return to work earlier than the end of his additional adoption leave (or where the employer delays the employee’s return in the circumstances described above) from 28 days to 8 weeks.

Regulation 8 also sets out notification requirements where the employee changes her mind more than once as to her intended return date. If, after notifying the employer that she intends to return before the end of her additional maternity leave period on return date X, she then decides to return on an earlier date, she is required to give 8 weeks' notice of the new return date. If she intends to return later than date X, she will be required to give 8 weeks' notice ending with date X. Regulation 15 effects the same changes regarding notice for employees on statutory adoption leave.

Regulation 9 inserts a new regulation 12A which enables an employee on maternity leave to agree with her employer to work for up to 10 days during the statutory maternity leave period without bringing that period to an end as a result of carrying out the work. For the purposes of that new provision, “work” may include training or any other activity undertaken to assist the employee in keeping in touch with the workplace. The new provision also sets out that reasonable contact which employers and employees are entitled to have with each other during the maternity leave period does not bring that period to an end.

Any such work must be by agreement between the parties and there is no right for an employer to demand that an employee undertake any such work, nor for an employee to do such work. The regulation also provides that any such days' work shall not have the effect of extending the maternity leave period. Regulation 14 introduces a new regulation 21A into the Paternity and Adoption Leave Regulations which makes equivalent provision for employees on statutory adoption leave.

Regulations 10 and 16 add undertaking, considering undertaking and not undertaking any such work to the list of reasons for which an employee is entitled to protection from detriment under section 47C of the Employment Rights Act 1996 (c. 18).

Regulations 11 and 17 similarly add undertaking, considering undertaking and not undertaking any such work to the list of reasons for which an employee, if dismissed for such a reason, is unfairly dismissed under section 99 of the Employment Rights Act 1996.

Regulations 11 and 17 also remove the small employers' exemption in order to clarify that the employee has a right to return to the same or a similar job regardless of the size of the organisation for which the employee works. If the employee is prevented from so doing in these circumstances the dismissal will be automatically unfair under section 99 of the Employment Rights Act 1996.

A Regulatory Impact Assessment of the costs and benefits of these Regulations to business has been placed in the libraries of both Houses of Parliament. Copies are available to the public from the Employment Relations Directorate, 1 Victoria Street, London, SW1H 0ET and are also available on the Directorate’s website: www.dti.gov.uk/employment/index.html.