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Mark Serby: Changed expectations over maternity leave
A MONTH doesn't go by without reports in the media of changes to – or proposals to change – maternity and paternity leave.
Sir Alan Sugar has said that he would not consider employing women of child-bearing age. Have we gone too far with maternity and paternity rights, or are these changes merely prudent in the workplace, enabling employees to work to the best of their abilities?
Employers often treat matters of sex discrimination with a certain amount of trepidation, especially when it concerns women of a child-bearing age.
We receive a lot of questions surrounding maternity rights and how an employee's rights alter when they become pregnant. This shows that there is a lot of uncertainty and, ultimately, a lack of confidence on behalf of business owners, concerning mothers and pregnant workers.
A pregnant woman should be afforded the same rights as an employee who is not expecting a child.
Pregnancy is not a shroud that protects women in the workplace from redundancy, as some may think; the real issue is that pregnancy cannot be cited as the reason for redundancy. It is, therefore, neither the cause nor the refuge from dismissal from work.
Within the last few weeks, there have been numerous proposals on and changes to maternity rights.
The draft Maternity and Parental Leave and the Paternity and Adoption Leave (Amendment) Regulations 2008 will amend previous law and remove the distinction between the rights of employees on ordinary maternity leave and those on additional maternity leave.
This will mean that all women whose expected week of childbirth begins
on – or after – October 5, 2008, or an employee whose child is expected to be placed with them for adoption on or after that date, will be entitled to the same rights, whether on ordinary or additional maternity leave.
In reality, this will mean that whatever type of leave is taken, the employee will be entitled to the benefit of (and bound by any obligation arising from) all the terms and conditions of employment which would have applied if she had not been absent. It will also aim to protect the seniority of woman when they return from their maternity leave.
The new Government proposals will ultimately make it easier for the father to take paternity and parental leave. These plans mean that fathers will be given the right to take the second half of
paid "maternity" leave when maternity leave is extended to a year in 2010.
Additionally, the Government has revealed proposals to make it easier for parents to opt for flexible working hours.
It has stated that it plans to extend to all parents of children up to the age of 16, from the current cut-off point which is six, the right to ask to work part-time or for flexible working hours.
However, employers have the right to refuse flexible working, so long as they have a reasonable response.
The proposed increase in employment legislation will make things more difficult for small and medium enterprises (SMEs) as they have less room for manoeuvre compared with large organisations.
SMEs often lack human resources personnel and, therefore, handling the demands of female staff surrounding the issue of flexible hours and maternity can be more of a problem.
I would suggest that directors of such companies seek legal counsel to give themselves an overview of employer/employee rights and provide them with the confidence to deal with this potentially challenging issue fairly and efficiently.
Discrimination in all walks of life will always be an issue, but legislation such as the Sex Discrimination Act is designed to minimise the detrimental impact of discrimination in the workplace.
I believe we are all better off for the increase in protection via this law, rather than have no protection at all, as experienced in the 1970s when women were often expected to leave their jobs if they found out they were pregnant.
The debate on the issue of maternity employees rights will continue to rumble on and all employers can do is to continue to be reactive to the situations they find themselves in.
Mark Serby is head of employment at Sheffield solicitors Wake Smith & Tofields.
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Saturday 26 May 2012
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