The Maternity and Parental Leave etc. Regulations 1999

Made: 10th December 1999

Coming into force: 15th December 1999

Whereas a draft of the following Regulations was laid before Parliament in accordance with section 236(3) of the Employment Rights Act 1996 and approved by a resolution of each House of Parliament:

Now, therefore, the Secretary of State, in exercise of the powers conferred on him by sections 47C(2) and (3), 71(1) to (3) and (6), 72(1) and (2), 73(1), (2), (4) and (7), 74(1), (3) and (4), 75(1), 76(1), (2) and (5), 77(1) and (4), 78(1), (2) and (7), 79(1) and (2) and 99(1) of that Act and of all other powers enabling him in that behalf, hereby makes the following Regulations:—

PART 1 — GENERAL

Citation and commencement

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These Regulations may be cited as the Maternity and Parental Leave etc. Regulations 1999 and shall come into force on 15th December 1999.

Interpretation

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• (1) In these Regulations—

• “the 1996 Act" means the Employment Rights Act 1996;

• "additional adoption leave" means leave under section 75B of the 1996 Act;

• “additional maternity leave" means leave under section 73 of the 1996 Act;

• “armed forces independence payment’’ means armed forces independence payment under the Armed Forces and Reserve Forces (Compensation Scheme) Order 2011;

• “business" includes a trade or profession and includes any activity carried on by a body of persons (whether corporate or unincorporated);

• “child" means a person under the age of eighteen;

• “childbirth" means the birth of a living child or the birth of a child whether living or dead after 24 weeks of pregnancy;

• “collective agreement" means a collective agreement within the meaning of section 178 of the Trade Union and Labour Relations (Consolidation) Act 1992 , the trade union parties to which are independent trade unions within the meaning of section 5 of that Act;

• “contract of employment" means a contract of service or apprenticeship, whether express or implied, and (if it is express) whether oral or in writing;

• “disability living allowance" means the disability living allowance provided for in Part III of the Social Security Contributions and Benefits Act 1992 ;

• “employee" means an individual who has entered into or works under (or, where the employment has ceased, worked under) a contract of employment;

• “employer" means the person by whom an employee is (or, where the employment has ceased, was) employed;

• “expected week of childbirth" means the week, beginning with midnight between Saturday and Sunday, in which it is expected that childbirth will occur, and “week of childbirth" means the week, beginning with midnight between Saturday and Sunday, in which childbirth occurs;

• “job", in relation to an employee returning after ... maternity leave or parental leave, means the nature of the work which she is employed to do in accordance with her contract and the capacity and place in which she is so employed;

• “ordinary maternity leave" means leave under section 71 of the 1996 Act;

• “parental leave" means leave under regulation 13(1);

• “parental responsibility" has the meaning given by section 3 of the Children Act 1989 , and “parental responsibilities" has the meaning given by section 1(3) of the Children (Scotland) Act 1995 ;

• “personal independence payment” means personal independence payment under Part 4 of the Welfare Reform Act 2012;

• "statutory leave" means leave provided for in Part 8 of the 1996 Act;

• “statutory maternity leave” means ordinary maternity leave and additional maternity leave;

• “statutory maternity leave period” means the period during which the employee is on statutory maternity leave;

• “workforce agreement" means an agreement between an employer and his employees or their representatives in respect of which the conditions set out in Schedule 1 to these Regulations are satisfied.

• (2) A reference in any provision of these Regulations to a period of continuous employment is to a period computed in accordance with Chapter I of Part XIV of the 1996 Act, as if that provision were a provision of that Act.

• (3) For the purposes of these Regulations any two employers shall be treated as associated if—

• (a) one is a company of which the other (directly or indirectly) has control; or

• (b) both are companies of which a third person (directly or indirectly) has control;

and “associated employer" shall be construed accordingly.

• (4) In these Regulations, unless the context otherwise requires,—

• (a) a reference to a numbered regulation or schedule is to the regulation or schedule in these Regulations bearing that number;

• (b) a reference in a regulation or schedule to a numbered paragraph is to the paragraph in that regulation or schedule bearing that number, and

• (c) a reference in a paragraph to a lettered sub-paragraph is to the sub-paragraph in that paragraph bearing that letter.

Application

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• (1) The provisions of Part II of these Regulations have effect only in relation to employees whose expected week of childbirth begins on or after 30th April 2000.

• (2) Regulation 19 (protection from detriment) has effect only in relation to an act or failure to act which takes place on or after 15th December 1999.

• (3) For the purposes of paragraph (2)—

• (a) where an act extends over a period, the reference to the date of the act is a reference to the last day of that period, and

• (b) a failure to act is to be treated as done when it was decided on.

• (4) For the purposes of paragraph (3), in the absence of evidence establishing the contrary an employer shall be taken to decide on a failure to act—

• (a) when he does an act inconsistent with doing the failed act, or

• (b) if he has done no such inconsistent act, when the period expires within which he might reasonably have been expected to do the failed act if it was to be done.

• (5) Regulation 20 (unfair dismissal) has effect only in relation to dismissals where the effective date of termination (within the meaning of section 97 of the 1996 Act) falls on or after 15th December 1999.

PART II — MATERNITY LEAVE

Entitlement to ordinary maternity leave

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• (1) An employee is entitled to ordinary maternity leave and to additional maternity leave provided that she satisfies the following conditions—

• (a) no later than the end of the fifteenth week before her expected week of childbirth, or, if that is not reasonably practicable, as soon as is reasonably practicable, she notifies her employer of—

• (i) her pregnancy;

• (ii) the expected week of childbirth, and

• (iii) the date on which she intends her ordinary maternity leave period to start,

and

• (b) if requested to do so by her employer, she produces for his inspection a certificate from—

• (i) a registered medical practitioner, or

• (ii) a registered midwife,

stating the expected week of childbirth.

• (1A) An employee who has notified her employer under paragraph (1)(a)(iii) of the date on which she intends her ordinary maternity leave period to start may subsequently vary that date, provided that she notifies her employer of the variation at least—

• (a) 28 days before the date varied, or

• (b) 28 days before the new date,

whichever is the earlier, or, if that is not reasonably practicable, as soon as is reasonably practicable.

• (2) Notification under paragraph (1)(a)(iii) or (1A)—

• (a) shall be given in writing, if the employer so requests, and

• (b) shall not specify a date earlier than the beginning of the eleventh week before the expected week of childbirth.

• (3) Where, by virtue of regulation 6(1)(b), an employee’s ordinary maternity leave period commences with the day which follows the first day after the beginning of the fourth week before the expected week of childbirth on which she is absent from work wholly or partly because of pregnancy—

• (a) paragraph (1) does not require her to notify her employer of the date specified in that paragraph, but

• (b) (whether or not she has notified him of that date) she is not entitled to ordinary maternity leave or to additional maternity leave unless she notifies him as soon as is reasonably practicable that she is absent from work wholly or partly because of pregnancy and of the date on which her absence on that account began.

• (4) Where, by virtue of regulation 6(2), an employee’s ordinary maternity leave period commences on the day which follows the day on which childbirth occurs—

• (a) paragraph (1) does not require her to notify her employer of the date specified in that paragraph, but

• (b) (whether or not she has notified him of that date) she is not entitled to ordinary maternity leave or to additional maternity leave unless she notifies him as soon as is reasonably practicable after the birth that she has given birth and of the date on which the birth occurred.

• (5) The notification provided for in paragraphs (3)(b) and (4)(b) shall be given in writing, if the employer so requests.

Entitlement to additional maternity leave

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. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Commencement of maternity leave periods

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• (1) Subject to paragraph (2), an employee’s ordinary maternity leave period commences with the earlier of—

• (a) the date which ... she notifies to her employer , in accordance with regulation 4, as the date on which she intends her ordinary maternity leave period to start, or, if by virtue of the provision for variation in that regulation she has notified more than one such date, the last date she notifies, and

• (b) the day which follows the first day after the beginning of the fourth week before the expected week of childbirth on which she is absent from work wholly or partly because of pregnancy.

• (2) Where the employee’s ordinary maternity leave period has not commenced by virtue of paragraph (1) when childbirth occurs, her ordinary maternity leave period commences on the day which follows the day on which childbirth occurs.

• (3) An employee’s additional maternity leave period commences on the day after the last day of her ordinary maternity leave period.

Duration of maternity leave periods

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• (1) Subject to paragraphs (2) and (5), an employee’s ordinary maternity leave period continues for the period of 26 weeks from its commencement, or until the end of the compulsory maternity leave period provided for in regulation 8 if later.

• (2) Subject to paragraph (5), where any requirement imposed by or under any relevant statutory provision prohibits the employee from working for any period after the end of the period determined under paragraph (1) by reason of her having recently given birth, her ordinary maternity leave period continues until the end of that later period.

• (3) In paragraph (2), “relevant statutory provision" means a provision of—

• (a) an enactment, or

• (b) an instrument under an enactment,

other than a provision for the time being specified in an order under section 66(2) of the 1996 Act.

• (4) Subject to paragraph (5), where an employee is entitled to additional maternity leave her additional maternity leave period continues until the end of the period of 26 weeks from the day on which it commenced.

• (5) Where the employee is dismissed after the commencement of an ordinary or additional maternity leave period but before the time when (apart from this paragraph) that period would end, the period ends at the time of the dismissal.

• (6) An employer who is notified under any provision of regulation 4 of the date on which, by virtue of any provision of regulation 6, an employee’s ordinary maternity leave period will commence or has commenced shall notify the employee of the date on which her additional maternity leave period shall end—

• (a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

• (b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

• (7) The notification provided for in paragraph (6) shall be given to the employee—

• (a) where the employer is notified under regulation 4(1)(a)(iii), (3)(b) or (4)(b), within 28 days of the date on which he received the notification;

• (b) where the employer is notified under regulation 4(1A), within 28 days of the date on which the employee’s ordinary maternity leave period commenced.

Compulsory maternity leave

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The prohibition in section 72 of the 1996 Act, against permitting an employee who satisfies prescribed conditions to work during a particular period (referred to as a “compulsory maternity leave period"), applies—

• (a) in relation to an employee who is entitled to ordinary maternity leave, and

• (b) in respect of the period of two weeks which commences with the day on which childbirth occurs.

Exclusion of entitlement to remuneration during ordinary maternity leave

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• (1) An employee who takes ordinary maternity leave or additional maternity leave—

• (a) is entitled, during the period of leave, to the benefit of all of the terms and conditions of employment which would have applied if she had not been absent, and

• (b) is bound, during that period, by any obligations arising under those terms and conditions, subject only to the exceptions in sections 71(4)(b) and 73(4)(b) of the 1996 Act.

• (2) In paragraph (1)(a), “terms and conditions” has the meaning given by sections 71(5) and 73(5) of the 1996 Act, and accordingly does not include terms and conditions about remuneration.

• (3) For the purposes of sections 71 and 73 of the 1996 Act, only sums payable to an employee by way of wages or salary are to be treated as remuneration.

• (4) In the case of accrual of rights under an employment-related benefit scheme within the meaning given by Schedule 5 to the Social Security Act 1989, nothing in paragraph (1)(a) concerning the treatment of additional maternity leave shall be taken to impose a requirement which exceeds the requirements of paragraph 5 of that Schedule.

Redundancy during maternity leave

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• (1) This regulation applies where it is not practicable by reason of redundancy for an employer to continue to employ an employee under her existing contract of employment during—

• (a) the protected period of pregnancy;

• (b) the statutory maternity leave period; or

• (c) the additional protected period.

• (1A) For the purposes of paragraph (1)(a) the protected period of pregnancy—

• (a) begins, subject to paragraph (c), when the employer is informed of the pregnancy which may be after the end of the pregnancy,

• (b) ends—

• (i) if the employee has the right to statutory maternity leave, on the day on which the statutory maternity leave period commences, or

• (ii) if the employee does not have the right to statutory maternity leave, at the end of the period of two weeks beginning with the end of the pregnancy, but,

• (c) does not begin if the employer is informed of the pregnancy on or after the day on which, had the employer been informed of the pregnancy earlier, the protected period of pregnancy would have ended in accordance with either paragraph (b)(i) or (ii).

• (1B) For the purposes of paragraph (1)(c) the additional protected period—

• (a) begins with the day after the last day of the employee’s statutory maternity leave period;

• (b) continues during any period of continuous employment that includes the statutory maternity leave period referred to in sub-paragraph (a); and

• (c) ends immediately before the relevant day.

• (1C) For the purposes of paragraph (1B)(c) the relevant day—

• (a) where paragraph (1D) does not apply, is the day after a period of 18 months beginning with the first day of the expected week of childbirth;

• (b) where paragraph (1D) applies, is the day after a period of 18 months beginning with the day that childbirth occurred.

• (1D) This paragraph applies where, before the end of the statutory maternity leave period or, if that is not reasonably practicable, as soon as is reasonably practicable thereafter, the employer has been notified by the employee of the day that childbirth occurred.

• (1E) Notification under paragraph (1D) must be given in writing if the employer so requests.

• (2) Where there is a suitable available vacancy, the employee is entitled to be offered (before the end of her employment under her existing contract) alternative employment with her employer or his successor, or an associated employer, under a new contract of employment which complies with paragraph (3) (and takes effect immediately on the ending of her employment under the previous contract).

• (3) The new contract of employment must be such that—

• (a) the work to be done under it is of a kind which is both suitable in relation to the employee and appropriate for her to do in the circumstances, and

• (b) its provisions as to the capacity and place in which she is to be employed, and as to the other terms and conditions of her employment, are not substantially less favourable to her than if she had continued to be employed under the previous contract.

Requirement to notify intention to return during a maternity leave period

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• (1) An employee who intends to return to work earlier than the end of her additional maternity leave period, shall give to her employer not less than 8 weeks' notice of the date on which she intends to return.

• (2) If an employee attempts to return to work earlier than the end of her additional maternity leave period without complying with paragraph (1), her employer is entitled to postpone her return to a date such as will secure, subject to paragraph (3), that he has 8 weeks' notice of her return.

• (2A) An employee who complies with her obligations in paragraph (1) or whose employer has postponed her return in the circumstances described in paragraph (2), and who then decides to return to work—

• (a) earlier than the original return date, must give her employer not less than 8 weeks' notice of the date on which she now intends to return;