Each week, Peninsula Business Services invite business owners, finance directors and senior management to take advantage of our national program of FREE Employment Law and Health & Safety Webinars.

Amanda Chadwick

Maternity and paternity rights confuse many employers, the law constantly changes and many bosses are often caught out. In this video, I advise employers on the changes and what HR policies and procedures you need in place to comply with the legislation. By the end of the webinar you will be fully knowledgeable on all HR rules concerning maternity and paternity.

Video Transcript:

Amanda: Welcome to today’s webinar. It’s on maternity and paternity. We’ve seen ages of children, women having babies and giving birth to children changing over the past few years. If we look, there’s no particular age when somebody now. You can have twins at 60 with a fertility treatment, if you want, I think. We’re seeing a lot of people…we have women now who are the main breadwinner in the home. Lots of homes have that. And also, there’s lots of same sex partnerships now. There’s a lot has an impact on how people take maternity leave, how they take it, what they do, etc.

The other thing is when the employee isn’t pregnant anymore and there’s a duty of care from the employer to know and protect the employee. So what we always recommend is that you look at your policies and procedures. I’m not looking for a huge maternity policy at this stage. What I’m looking for is a statement that protects my client from having a tribunal, or a pregnancy discrimination claim.

To do that, we need to know when somebody is pregnant within the workplace, what is the maximum lifting? What is the maximum lifting, what is the recommended lifting for when somebody’s pregnant? We won’t know whether the pregnancy is troubled, if it’s a healthy pregnancy, etc. We need to do a risk assessment when we know somebody’s pregnant to know what they can lift, and to know what kind of environment they can work in.

Think of the care sector, for example. If I work in a care home and I become pregnant, I don’t tell you, and then I’m working with adults, or the elderly who, through no fault of their own, are violent. They hurt me and I lose the baby. What have we got in place to protect ourselves as employers and managers? What I would like, in your policies and procedures as a defense statement to protect you, and especially the H.R. people here, and the managers and directors that are listening to me. To protect you and your job, I want a statement that says, “When a female employee becomes pregnant, she lets us know at the earliest stage possible so we can meet the health and safety standards necessary for her to do her job.”

I’ve protected you straightaway with that statement because I’ve delegated responsibility and authority to the member staff to tell me, written, at the earliest stage that they are pregnant. So I’m not going to dismiss them without knowing they’re pregnant. I know that I have to do risk assessments, and I know I should have health and safety standards in place to protect them. They have to tell me, and then I implement them. I don’t want to be one of those people that dismiss somebody without that statement in place, and then I’ve got to defend myself.

We get a lot of questions about maternity and paternity. You’ve got to remember, as well, the law has changed, things have changed, and society has changed. So are two people that are in a same sex relationship, are they entitled to paternity if one of them gets pregnant? Yes they are. And then what happens, I’ve got a Jeremy Kyle moment here for you. What happens? Let me give you this scenario, as well. These are just some of the questions we get on our advice line, and we take 60,000 calls a week. So you can imagine how many calls we get.

So, same company, factory scenario. Let me give you this. I work for you. This is your Jeremy Kyle moment for today. I work for you and I work in your factory. I’m a hard-working individual, and my husband works there as well. I become pregnant by my husband, but shortly after, we split up. I’m in the early stages of pregnancy, when I get cliquey with somebody else that works in your factory. Then, what happens is I move in, or he moves in with me. Can you tell me now…asking you, the employer, H.R. or manager, when I give birth, which member of your staff is entitled to the paternity leave?

What we would recommend to our client, for argument’s sake, in the sake of a couple of weeks, manage it between them? But what we would say is that they’re both entitled. Because one actually made the baby, and the other one is contributing to the upbringing of the child, as well. So for argument’s sake, we would say give it to both of them.

So with policies and procedures, what you have to remember is that some companies might give better favors than others. Some countries are so behind the times, there are certain companies that actually dismiss…countries where they can dismiss you, actually, if you are pregnant. But that’s not the case in this country.

So what I would like, in your policies and procedures, is to have a look at what you’ve got in place. Have a look at what your statement says. Does it protect you from somebody saying, “They dismissed me when I was pregnant?” How do you delegate the responsibility and authority to that member staff to let you know when they’re pregnant? Have you got risk assessments in place? Do you know what the maximum lifting is for a woman when she’s not pregnant? That if they are pregnant, it’s zero? You need to do risk assessments, based on whether they are able to lift or not. We need health and safety standards in place, and we need to create this paper trail.

This is the codes and interpretation for paternity pay. What I will say to you is that after this presentation today, these slides will be uploaded onto the YouTube. And the recording, as well, which was a little bit touch and go at the beginning. But the recording will be there, as well. So don’t try and struggle to write notes here. Have a look at those codes. They’re there for you as reference. Okay?

The employer must write back within 28 days, setting out her return date. The employee can change commencement date by giving 28 days’ notice. There’s paid reasonable time off for antenatal appointments, and the right to return to exactly the same job. Okay? Those are the requirements by law.

During maternity leave, normal terms or additional maternity leave, they must advise 50 weeks before the expected week of childbirth. And they must confirm their pregnancy date of arrival, medical certificate, date of intended maternity leave, no earlier than 11 weeks before the expected date.

We’ve got statutory maternity pay. This is the legal minimum you, the employer, normally has to pay the employee while they’re on maternity leave. To qualify for SMP at 15 weeks, they must have been working for you, the employer, for 26 weeks and earning enough, £109 per week. SMP for the first six weeks, 90% of their earnings before tax. Remaining 33 weeks is £136.78, or 90% earnings if that’s less. If they don’t qualify, advise them to see help. They might be entitled to maternity allowance.

We definitely see a lot of things can change if someone is taking 52 weeks off. You can agree with them, and you might want to write something in your contract here that they are able to have up to ten keeping in touch days. I just think this is a fantastic thing to do, for the employer and the employee. I see so many people see maternity, pregnancy, paternity leave as negative. It doesn’t have to be. What you are going to get, is a really good dedicated employee in lots of cases. They come into work, they work for you, they get pregnant. You’ll get a temporary worker in to cover them while they’re off. They come back to work, and they really do need this job. They’re keeping this job.

It’s horrible when you’ve had two weeks off sick, you think you’ve missed something, don’t you? So, imagine having the whole year off of work. What’s happened while I’ve been away? So if we arrange ten keeping in touch days, then they’ve got the chance to come into work, earn a bit of extra cash whilst they’re off, and also keep on top of their training, keep on top of what’s going on in the workplace. New starters get to get used to seeing them around, as well. I just think these are amazing days. Lots of companies have done these for years.

I know Starbucks is one company that has always had keeping in touch days. It doesn’t bring the maternity to an end, or lose them their entire entitlement to SMP, either. They get paid above this. There’s no automatic entitlement to be paid. However, this can be agreed. I think it’s a great opportunity for the employer to pay them a bit of extra cash to get them by and to come back. What about reasonable contact, anyway, from time to time? It does not bring maternity to an end. Remember that.

Now we’re talking about additional paternity leave. I’ve got a summary here about paternity leave and additional paternity leave. Then I’m going to lead into paternity leave. What we know, at Peninsula, there was a recent study showing that less than 1% of men are taking up their entitlement to additional paternity leave. The entitlement to additional paternity leave was introduced by the government in 2011 as part of its eternal plan to provide a better work/life balance for the U.K. employees. It’s only been available for two years. It’ll be a little over that next year. Recent decisions to change entitlements for working parents mean that it will be abolished in 2015, to be replaced by an entire flexible leave system.

Until then, what do we know about it? Additional paternity leave is a separate entitlement from the entitlement to ordinary paternity leave. Ordinary paternity leave is for a maximum of two weeks, which much be taken within 56 days after the birth. An employee will only be eligible to take it if they have 26 weeks service by the end of the 15th week before the baby is due. The same length of service criterion applies to the additional paternity leave. But this time, a maximum of 26 weeks leave can be taken. The earliest point at which additional paternity leave can start is when the baby is 20 weeks old. It is also a requirement that the mother of the baby has returned to work. This means that the mother and the father cannot take their respective leave periods at the same time. Parents would have to use other entitlements if they wanted to be off at the same time.

An example is annual leave, or parental leave. But even then, there are restrictions to do that, depending on when the leave is to be taken. The mother of the baby is effectively transferring the rest of her leave over to the father.

Whilst many companies offer a good maternity package, or, for example, six months at for full pay or six months at half pay, very few will have considered offering an enhanced pay entitlement for fathers who wish to take an extended period of time off to allow the mother to go back to work and still keep childcare within the close family.

Typically, it is the father who earns more than the mother. So most couples choose for the mother to remain off work and the father to continue earning his normal salary. There is, indeed, no requirement for employers to offer any payment in excess of the statutory minimum, in terms of rate of pay and its duration. Statutory payments for fathers on additional paternity leave also stop at the point that the mother’s maternity leave would have stopped if the leave had remained with the mother. So, the point of 39 weeks after the birth, statutory payments will stop and a father on additional paternity leave will receive no pay for the rest of the leave period.

From 2015, the government are set to introduce shared parental leave, which will mean that parents will be able to break up their periods of leave down to a minimum one-week period, which they can alternate for a maximum of 50 weeks, should they choose. Ordinary and additional paternity leave are not only available to fathers of a baby, remember this, but also to employees who are married to, or the civil partner of the child’s mother or adopter. Whatever the relationship, the employee must have, or expect to have responsibility for the bringing up of the child. So that’s additional paternity leave.

We would recommend some sort of mention of parental leave in your handbook: how they take it, what your requirements are, and what you want them to do and how they would action that. You know, what they’re requirement is, who they would go to in order to have it authorized, and what the notice period is. We would like to see some mention of that in your handbook.

In the event that an employee has an emergency situation to deal with in relation to one of his ‘dependents’, he is legall entitled to take a reasonable amount of time off work to deal with that emergency. For this right to apply, the employee must inform you, as soon as is reasonable practical, why he’s absent and how long he expects the absence to last. There are various circumstances in which this right would apply, including when a dependent is taken ill or when there is a breakdown of care arrangements. A dependent is an employee’s parent, wife, husband, civil partner, child, or someone who lives with the employee as part of the family, who’s not a lodger, boarder, employee, or [attendant]. I would say, in these cases we’ve seen it, a very close family member that they rely on and look after.

Because you refuse to let the employee avail himself of his rights, the employee could bring a case against you at the tribunal. The law sets out specific enforcement of this right. If the tribunal found that you unreasonably refused to allow the employee to take time off for dependents, they’re entitled to award the employee compensation, the amount of which will be what the tribunal finds just and equitable in the circumstances. The employee would have to make the claim within three months of the time off being refused. If this situation doesn’t lead to a tribunal claim, it may be, nonetheless, that the employee files a grievance claim because of the refusal, which you would deal with as per your company’s grievance procedure.

The law states that any time taken as time off for dependents is unpaid. However, you should check the employee’s contract of employment to see if there is a contractual provision for pay during this period. That is something I do talk about. Lots of companies pay dependents leave, but they pick and choose who they’re paying. They pay a woman that’s been there for 10 years because she’s dedicated, but they don’t pay a woman who’s 18, who has a baby, and has only been there a week. That’s discrimination. Age discrimination. If you’re going to pay, pay everybody. If you’re not going to pay, don’t pay anybody.

Remember this falls into absenteeism. So make sure that you have something written in place. That is says either unpaid or paid. I do think that if you have an unpaid rule, that you can allow your staff to make up the time with holidays or make the time back. But remember, have a written agreement with them to do that.

There is no predetermined maximum time that can be taken. But remember, the law states, “only reasonable amount.” I wish they had an equation there for what reasonable is, because I have not got a clue. It really is a grey area.

At the end of the day, you do know your staff. You know when somebody’s taking the mickey. But what I say is continue to assess it, do return to work interviews. Remember that as dependent leave falls into absenteeism, monitor it under the absenteeism. My opinion, I wouldn’t pay. I would have it as unpaid leave, and if someone is struggling financially, give it to them as extra holiday, give it to them as unpaid, or give it to them and say, “make the time up.” But I’d monitor it.

So, there to take necessary action is just some of the examples. Provide assistance to a dependent who falls ill, gives birth, is injured or assaulted, to make arrangements for the provision of care for a dependent, in consequence of death of a dependent, unexpected disruption of care arrangements, to deal with an unexpected incident of a child of an employee, which happens during the times frames in which an educational establishment should have been caring for the child. You might see this later, as well, when a child is unruly at school. I’ve had a few of those in my time. You know, of my own children, I must say. Where you get called unexpectedly because a child has bitten a teacher at the age of four, and you have to go and sort that out. That’s the type of thing that I’m talking about. When the school’s called you in.

So, holidays and maternity leave. Legislation stipulates that an employee who takes maternity leave is entitled to the benefit of all of the terms and conditions of employment which would have applied had she not been absent. Because maternity leave can span a significant amount of time, the question arises about what happens to the employee’s entitlement to annual leave that she accrues during the annual leave year in which she is absent.

Theoretically, maternity leave could commence as the annual leave year commences and end as the annual leave year ends, leaving no room for the employee to take her annual leave entitlement. It is clear that an employee cannot be on maternity leave and annual leave at the same time. Although, in theory, the dates could clash, it would be a rare occurrence. Meaning that, usually, maternity leave spans two annual leave years.

So, employees need to be proactive. The employee may wish to end her maternity leave early and take annual leave up until the date that her maternity leave would ordinarily have ended. The actual amount of time away from work would remain the same. The part of it designated to annual leave should be paid at her normal rate of pay, rather than statutory maternity pay.

I know that that’s something that I did. I ended my maternity leave early, and then I took my annual leave up until the date that I was due to return. That helps financially in some households, as well. So I think that’s a pretty good idea. It helps both parties. If the employee takes annual leave before her maternity leave is intended to start, if she gives birth while still on annual leave, the annual leave will stop and maternity leave will automatically be triggered. This is because an employee cannot be on annual leave and maternity leave at the same time.

Here’s another question. This is about flexible working now. We have an employee due to return from maternity leave in November, who has requested to change her part time work pattern, meaning she will be starting later. We will not know if this is workable until it has been in place for a few weeks. Do we have to agree to it?

What we are seeing at the moment, I will add, is we are seeing a lot of different working patterns. I don’t know about you, if you have to head into cities to work somewhere. I live in North Wales, and quite often I head into Manchester to go to our head office. I have to say to you, I’ve worked in London, as well. I work all over the country. I even work in the Outer Hebredes. Everywhere there’s a piece of land, I go. But I have to say, go ahead into Manchester, or Birmingham or London, the traffic is an absolute nightmare. It’s stressful.

If I want to miss the traffic going into Manchester, I have to leave at 7:00 in the morning to get there by 9:00. It’s only a 45 or 50 minute journey to get there when the road is clear. It really frustrates you. If there’s an accident or traffic jam, it’s so annoying. Sometimes, what businesses are doing now, because of the shear wait traffic on the roads, is they’re looking at different ways of working within their companies. Also, cost effective ways.

I know, for sure, for me, I do get more work done when I’m at home. I don’t get interrupted by people. I don’t get asked questions. I’m not asked about editorial. I’m not asked about anything. I can just get on with my job, and that is what I like. I’m a chatty person, so I like to chat, but I need to get my work done. So when I’m working from home, I can get so much more work done. And I can work it within my life and my time, as well, and it works perfectly for me. I know that can’t happen in lots of companies.

But what you could do is you could look at the different ways of working. People work with compressed hours, and they get a happier workforce because people are working either three or four days on, and then three days off or four days off. They get an amazing amount of time off, and they absolutely love it. I know Airbus is one company around where I live that actually instigates it. I came across compressed hours back in about 1989 in the Casino and the media, where they would do that as well. Compressed hours are brilliant.

What we’re also seeing is that people are looking at their job and thinking, “Does it really have to be a nine to five job?” Can we operate flexi time, which can be sometimes hard to manage? But can we look at, maybe, working a change in the shifts so that people might work evenings rather than…so an ordinary role as an personal assistant, could we actually operate that role as a job share and have one person working during the day, during the school hours, and then having somebody covering all of the paperwork in the evening and doing it in the evening to get all of the paperwork done?

I’ve seen companies where they have two part time personal assistants. One to answer the calls during the day and then one to do all of the paperwork in the evening. And it works. We’ve seen people having term time working. What you’re going to get is, if I have loads of children, which I have, and you’re offering me a term-time job, that is a gemstone and I will not leave that job. I will do my best to keep it. What we’re going to get is commitment.

Look at different ways. Don’t sort of close the doors on it. Have a look and assess what works best for your company. Look at the roles as well. What you might get is a student that’s getting an IT degree, or a computer degree, or an analytic degree, some sort of degree that benefits your business, who might be able to work in the evenings for you on a job that you were going to advertise during the day. You get the best of both worlds.

So let’s have a look at this, this question. I bet you’ve forgotten the question now, so I’m going to repeat it. We have an employee due to return from maternity leave November, who’s requested that she change her part time work pattern, meaning she’ll be starting later. We will not know if this is workable until it has been in place for a few weeks. Do we have to agree to it?

If the employee has at least 26 weeks service, she’s entitled to seek a change to her working pattern via the statute right to request flexible working in relation to the hours she will be working when she returns from maternity leave. Remember, not the automatic right to it. They have the right to request it, not the automatic right to it. This right is only available to her if she has not made a previous request within the last 12 months. She does not have the right to work flexibly, just the right to request to change her hours or location of work. And you are under a duty to consider this request. Do it all in writing, okay? That’s your defense.

The final decision, therefore, lies with you. This means that the control over the employee’s working hours remains with you. From a wider perspective, you didn’t have every eligible employee deciding on their own working hours, right? Remember this, as well, keep a paper trail, and when you agree to a change, you need to change somebody’s terms and conditions to reflect that change.

If the employee hasn’t requested the change by making an application under the statute procedure, you should encourage her to do so. You will need to hold a meeting with her to discuss the application, and she will need to have considered the effect that the requested change will have on you and how the effect might be dealt with. If there are good business reasons why the proposed change to working hours would not be workable, you’re entitled to refuse the request.

However, you can only refuse it for one of eight reasons, including these below. The burden of additional costs, the inability to recruit extra staff, and the inability to reorganize work amongst existing staff. If you do not envisage that the amended work pattern will work, then you can refuse the request in its entirety. Alternatively, you may think that the employee’s suggestion may work with a couple of alterations that the employee agrees to, so you can attempt to re-work the original request.

This is just one little thing, just to point out to you, if somebody says, “I work full-time, but then I want to request to work part-time hours, and I choose a Monday, Tuesday,” be careful about bank holidays. When you rework the terms and conditions, remember, a good idea would be to include the bank holidays into their normal holiday entitlement. You don’t want to pay over and above, do you?

Also, it is also possible to agree to a temporary change to the working pattern to effectively give you and the employee a trial period to see how the business runs on the amended pattern. Normally, any variation to hours agreed on will be a permanent change, unless it is expressly agreed between the parties that it will only apply for a short period of time. If a trial period is agreed to, the employer and employee must agree to delay the normal time limit for making a decision on the change in hours, and specify the date the extension is to end, i.e. how long the trial period will run for. Therefore, you will have the opportunity to see how the amended pattern works in practice and review it at staggered periods. You will, however, still retain your right to refuse the request at the end of the trial period, permitted the refusal is on one of the prescribed grounds I said before. So, that’s flexible working hours.

So, remember to have a look at ways of working. Remember that you can have a trial period with this. You don’t automatically have to say “yes”. You can agree to trial it. But remember, always, the paper trail I’m talking about. So, just some changes that are coming in that I’ve spoken about.

Extended rights for new parents, what are the new rights? Under the flexible parental leave system, parents will be able to share 50 weeks of leave between them after birth or adoption. Full amount of leave is for a year, but the mother will have to take her two weeks compulsory maternity leave first, so the remaining 50 weeks can be shared. It can be broken down to small chunks and time can be taken alternately by each parent.

The right to request flexible working will be made available to all employees, not just parents and carers. Flexible parental leave will be a nightmare for employers, planning, in and out situations. Unless it’s managed properly, that is. Planned implementation dates for all of this is 2015, except the flexible working part, which is expected next year.

Adoptive leave changes. The current qualifying period required to be eligible for adoption leave will be removed. So employees will be entitled to take adoption leave from day one of employment. Currently, employees need 26 weeks’ service at the point they are matched with a child to be entitled to adoption leave.

Antenatal appointments. Fathers will have a right to unpaid time off to attend two antenatal appointments, which I think is really fair. Surrogacy. Remember, same sex partners as well will be included in that. Intended parents of a child born through a surrogacy arrangements…we frown on surrogacy in this country so much. Yet they don’t in other countries. So we’re going to see society change so much to embrace surrogacy, adoptive leave, maternity, paternity. It will just be a regular thing. It’s all about control and management in the workplace and what you’ve got written down. Remember that.

Intended parents of a child born through a surrogacy arrangement who meet the criteria to apply for a parental order will be eligible for statutory adoption leave and pay if they meet the qualifying criteria; and for flexible parental leave and pay if they meet the qualifying criteria. They will also be eligible for unpaid time off to attend two antenatal appointments, which is fair dues for anybody. We’re seeing these changes in 2014 and ’15.

Remember I’m here to protect the employer. I’m here to protect the employer, managers, H.R., and proprietors and trustees. I’m here to help you manage all of this. I’m here to help you put things in place that help you manage it; to help you assess the situation and get it right, without ending up in a tribunal. Currently helping over 27,000 businesses throughout the U.K. I know that you’re aware of that. We’re taking 60,000 calls a week from employers, managers and H.R. We do help people. We write things in place that people don’t think about. The statement about maternity, “Let me know when you’re pregnant, rather than me guessing.”

I’m sorry about the sticky start at the beginning today. I’m so sorry it took ages to start, well three minutes total, which is ages when you’re listening at the end of a phone line, isn’t it. Had a problem with the [Goto] webinar system. It is Friday the 13th. I hope you have a very lucky Friday the 13th today.

We have a few more webinars coming up in the next few days, and we’ll finish with the webinars on the 19th of December. The ones coming up next week: We’ve got part-time workers on the 17th. We’ve got underperforming workers on the 18th, and we’ve got discrimination on the 19th. I hope that you find and you’re listening to me next week. And if not, I hope you have a very happy Christmas and a happy New Year.

If you’d like to access any of my previous webinars or recordings or slides, you can on www.youtube.com/pbspressoffice. If you’d like to contact me, and this is me, this is my email. This is not somebody answering my emails for me. This is my email address if you’d like to speak to me directly, you’d like some free advice, you’d like me to write some editorial for you, you’d like me to feature at an event you’ve got. I will do that for free because [Peninsula] will pay my wages for that. If you’d like me to host an event, or even organize an event for your clients, where I will talk about employment law and any particular topics that you think are important for your clients, we will do that for free. That means even provide the hotel. If that’s of any interest to you, contact me, amanda@peninsula-uk.com.

And if you’d like a free advice call and you’re not a Peninsula client, contact me or Lee on 0161-827-9915. I know that’s not a free phone, so ask us to ring you back straight away or contact me via email. This is webinar 0030, and for the Peninsula clients listening to me today, remember you’ve got the advice line there 24/7 for 365 days of the year. That means that you can ring us. We’re there to hold your hand, to help you out, to help you with any aspects of employment law. So don’t sit there struggling to write letters or adverts, or policies and procedures. That’s what you’re paying us for. I don’t want you to do that, because this is what we offer you as a service.

Then if you do have any issues or problems with tribunals, remember we assure you for that. So I hope I’ve helped you today. Excuse me about my cough. I hope to speak to you again shortly, and remember there are three other webinars next week. Thank you very much for listening to me today, and it’s goodbye from me.