Recently the European Commission has drafted a proposed amendment to existing legislation covering pregnant workers and workers who have recently given birth or are breastfeeding. In essence the proposal seeks to extend the minimum duration of maternity leave and to increase maternity pay in a manner deemed proportionate to achieve the stated aim of improving the health and safety of women as well as allowing women to better fulfill their professional and family obligations.

Minimum Maternity Leave
As it currently stands, the duration of maternity leave throughout EU Member States varies from 14 weeks in a small number of Member States to 28 weeks in others and, in certain circumstances, up to 52 weeks, not all of which is paid. The current situation in the UK is that:

• a pregnant employee may take up to 26 consecutive weeks of ordinary maternity leave and is also entitled to take a further 26 consecutive weeks of additional maternity leave beginning immediately after the end of ordinary maternity leave.
• the employee may choose when she takes her maternity leave provided it includes a minimum period of 2 weeks’ compulsory leave which begins on the day on which the child is born. In factories, the minimum period of compulsory leave is 4 weeks.

Article 9 of the new EU proposal, if implemented, would introduce new rules in respect of the minimum period of maternity leave as follows:

• The proposal extends the minimum length of maternity leave from 14 to 18 weeks. This increase is designed to allow women to recover from pregnancy and childbirth. Furthermore, it is designed to allow women to have more time with their children, and to be able to breastfeed for a longer period. This would not have any undue impact on the duration of maternity leave in the UK in light of the fact that a woman is already entitled to 52 weeks’ leave.
• Under existing EU rules, the duration of maternity leave must include a core period of 2 weeks before or after confinement. The proposal would see that this is amended such that maternity leave would have to include a core period of 6 weeks after the end of the expected week of confinement. This proposal, if implemented, would result in a change to existing UK rules as current legislation only requires a core period of 2 (or 4 – see above) weeks after the end of the expected week of confinement.

Maternity Pay
The Commissions proposal outlines that maternity employees should receive 100% of their salary equivalent to the full monthly salary received prior to the maternity leave. However, this is more of a principle or goal to be achieved rather than a mandatory requirement. Accordingly, the payment may be subject to a ceiling, to be determined by the Member State, provided that it is not set below the rate for sick pay.

Protection of Employment
This proposal seeks to further protect the employment of maternity employees by requiring Member States to take account of the case law of the European Court of Justice. In general, the proposal seeks to prohibit all preparations for a possible dismissal not related to exceptional circumstances. The proposal would also require employers, where the employee requests, to outline clearly in writing why they have dismissed an employee within six months of the end of her maternity leave. This is a substantial difference as currently employers are only subject to this requirement where they dismiss an employee during their maternity leave.

As this proposal is up for consideration very shortly by the European Parliament and the Council, employers should be aware of potential changes to maternity protection in the UK in the near future. We would encourage employers to seek advice from the 24 Hour Advice Service when faced with a maternity leave situation on 0844 892 2772.