Maternity Leave: Improved and Simplified?
| Published date | 01 November 2000 |
| DOI | http://doi.org/10.1111/1468-2230.00298 |
| Author | Jane Mair |
| Date | 01 November 2000 |
LEGISLATION
Maternity Leave: Improved and Simplified?
Jane Mair*
In the early 1980s, Browne-Wilkinson J famously described the maternity leave
provisions as being of ‘inordinate complexity exceeding the worst excesses of a
taxing statute’.
1
The system of maternity leave at that time was set out in the
Employment Protection (Consolidation) Act 1978 and was based on the right of
an employee, with the necessary period of continuity of employment,
2
to return
to work within 29 weeks after the week of confinement. This right to return was
dependent on compliance with various notification requirements. In 1994 the
Pregnancy Directive
3
was implemented by means of the Trade Union Reform
and Employment Rights Act 1993. No attempt was made on that occasion to
blend the existing provisions with those required by the Directive but instead
the new provisions were simply added on to the existing rules, resulting in a
two tier system of protection: all female employees were entitled to a period of
maternity leave of 14 weeks,
4
in addition to which, employees with the
necessary period of continuity of employment retained their right to return to
work by the end of 29 weeks after the week of childbirth. In both cases, the
earliest that the woman could commence her period of leave was 11 weeks
before the expected week of childbirth and the rights were subject to
compliance with stringent notification requirements. The complexity identified
by Browne-Wilkinson J had increased.
These two rights formed the basis of the maternity leave scheme which was
later set out in Part VIII of the Employment Rights Act 1996. In the 1998 White
Paper Fairness at Work, the government stated its commitment to ‘Family
Friendly’ employment and, within that context, the intention to take steps
towards improvement and simplification of maternity leave.
5
This process was
begun by the Employment Relations Act 1999 which substituted a new Part
VIII of the Employment Rights Act 1996.
6
The legislation set out the basic
framework for maternity leave but provided for further regulations to be
introduced by the Secretary of State; the Maternity and Parental Leave etc
Regulations 1999 came into force on 15 December 1999 and have effect for
ßThe Modern Law Review Limited 2000 (MLR 63:6, November). Published by Blackwell Publishers,
108 Cowley Road, Oxford OX4 1JF and 350 Main Street, Malden, MA 02148, USA. 877
* School of Law, University of Glasgow.
1Lavery vPlessey Telecommunications Ltd [1983] IRLR 202, 206 EAT.
2 Two years’ continuous employment for employees who worked for 16 hours or more per week and
five years’ continuous employment for those who worked between 8 and 16 hours per week.
3 Directive 92/85/EEC.
4 This right applied to all women whose expected week of confinement was after 16 October 1994.
5Fairness at Work Cm 3968 (London: Stationery Office, 1998) ch 5.
6 In addition to modifying the maternity leave provisions, the new part VIII of the 1996 Act also
implements the European Parental Leave Directive 96/34/EC.
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