Clause 7: Unfair dismissal connected with recognition: interim relief

113.     This clause allows an employee complaining of unfair dismissal under paragraph 79(2) of Schedule 1 to this Bill (dismissal connected with union recognition or derecognition) to claim interim relief.

Interim relief is dealt with in sections 128-132 of the 1996 Act. It may be awarded by an employment tribunal if it is applied for within seven days of the employee being dismissed and the tribunal considers it is likely to find the dismissal unfair. The effect of interim relief is that the employer must re-employ the worker on terms at least as favourable as before the dismissal, and hence the employee will continue to be paid. The amount paid under interim relief is offset against the compensation finally awarded by the tribunal. If the employer fails to re-employ the worker, the tribunal may order the employer to pay compensation.

Leave for family and domestic reasons

Clause 8 and Part I of Schedule 3: Maternity and parental leave

114.     Clause 8 gives effect to Part I of Schedule 3, which provides for basic rights and regulation-making powers relating to maternity and parental leave and will replace the existing maternity provisions in Part VIII of the 1996 Act. References to new sections, subsections and chapters in what follows are to the new sections, subsections and chapters inserted in the 1996 Act by Part I of Schedule 3 and references to sections etc are to the current sections of that Act.

115.     The new provisions are intended as a coherent package of maternity and parental leave rights. This new package extends the existing maternity leave rights for women and introduces a new right to parental leave for men and women. Employees will be protected from detriment or dismissal for exercising these rights, which will be mainly enforceable through the employment tribunals.

116.     Part I of Schedule 3 sets out the basis for the maternity leave scheme which will replace the maternity provisions contained in Part VIII of the 1996 Act. The provisions of the 1996 Act are considered complex and have been criticised by the Employment Select Committee on Working Mothers,

[* House of Commons, Session 1994-95, Employment Committee First Report "Mothers in Employment" Volume 1: Report and Proceedings of the Committee, 15 February 1995]

employers' and employees' organisations and the judiciary. The Bill aims to simplify the scheme by providing a basic framework in primary legislation with details in a single set of regulations. Some of the current provisions will be replaced (either in the new sections inserted in the 1996 Act or in regulations made under the new powers which the Bill inserts in that Act) in amended form to remove some of the complexities, while others will be re-enacted without any substantive difference.

117.     The new provisions were developed in informal consultation with the key stakeholders in this area and then published for public consultation in Fairness at Work. These notes set out some of the details of what the Government currently intends to include in the regulations to be made under powers in these new provisions. However, these details could change as a result of the further consultation the Government intends to conduct on the draft regulations.

118.     The new Chapter I of the new Part VIII of the 1996 Act sets out the amended rights to maternity leave. It provides for three periods of leave:

• ordinary maternity leave of not less than 18 weeks (which replaces current rights for all pregnant employees to 14 weeks leave);

• at least two weeks compulsory maternity leave; and

• additional maternity leave (which replaces the current right to return to work within 29 weeks of the baby's birth for women who qualify).

In each case, the legislation provides the basic right or duty together with powers for the Secretary of State to make regulations setting out detailed provisions.

New section 71: Ordinary maternity leave

119.     The new section 71 re-enacts the general right (currently in section 71 of the 1996 Act) of all pregnant employees, regardless of their length of service with an employer, to a period of maternity leave. It also replaces provisions in sections 72 to 76 with powers which will enable similar provisions to be made in regulations. The new provisions, like those they replace, implement requirements of the Pregnant Workers Directive (Council Directive 92/85/EEC).

120.     To distinguish it from other maternity leave periods provided for, the period of leave provided for in this section is called the ordinary maternity leave period. As under current provisions, during ordinary maternity leave the employee will be able to continue to receive the normal contractual and related benefits (including seniority and pension rights) due to her when she is working, other than her remuneration (new subsections (4) and (5)). She will also continue to be bound by contractual obligations such as confidentiality conditions (new subsection (4)(b)).

121.     The Secretary of State is given powers to make regulations:

• under new subsection (1), read with new section 75(2), prescribing conditions for qualifying for this right. As for the existing right to 14 weeks' leave, it is intended that the right will apply to all employees regardless of length of service so the prescribed conditions may be no more than a requirement that the employee notifies her employer that she is pregnant and when her baby is expected;

• under new subsections (2) and (3)(a), for the length of ordinary maternity leave, which must be not less than 18 weeks. The Government has said in Chapter 5 of Fairness at Work that the new entitlement will be to 18 weeks' leave, increased from the current entitlement of 14 weeks, in line with the 18 week period for Statutory Maternity Pay (which is dealt with in social security legislation);

• under new subsection (3)(b), which may allow employees to choose (as they do now) when they want to start maternity leave, subject to restrictions the regulations may set. Parameters similar to those having effect at present are likely to be set: currently women can choose to start maternity leave any time from the eleventh week before the expected week of the birth; maternity leave starts automatically if a woman is absent from work with pregnancy related illness in the six weeks prior to the birth, and at the latest when the baby is born; and

• under new subsection (6), specifying what counts as remuneration. It is intended that the regulations should provide that remuneration is the monetary element of a woman's salary or wages. Under the current provisions it can be difficult for employers and employees to know whether some benefits (such as a mortgage subsidy) are remuneration (and so not paid during maternity leave) or another element of the employee's terms and conditions (and therefore continue during maternity leave). This power would allow what counts as remuneration to be codified where this would be helpful in clarifying the law.

New section 72: Compulsory maternity leave

122.     This new section and the regulations for which it provides replace the Maternity (Compulsory Leave) Regulations 1994 (SI 1994 No. 2479), which implement the health and safety requirement in the Pregnant Workers Directive for there to be a minimum period of two weeks around the birth during which a woman must not work. The new provisions are intended to have similar effect to the current Regulations.

123.     The new section gives the Secretary of State powers to prescribe in regulations subject to negative resolution procedure the duration (subject to a minimum period of two weeks) and timing (subject to its falling within the ordinary maternity leave period) of the compulsory maternity leave period. It is intended that the period prescribed will be, as now, the two weeks following the baby's birth.

124.     The provisions put the onus on the employer not to allow a woman to work during the compulsory leave period and provide that any employer who contravenes this requirement will be guilty of a criminal offence and liable to a fine not exceeding level 2 on the standard scale for fines for summary offences (currently £500).

125.     Under the current legislation, giving women a basic right to maternity leave of 14 weeks, it would be possible for a woman starting her maternity leave eleven weeks before her baby is due to run out of leave if the baby was born late. In such a situation the current compulsory maternity leave rule ensures that her maternity leave continues for two weeks following the birth. With the increase in maternity leave entitlement from 14 weeks to 18 weeks, it is more difficult to envisage such a situation occurring, but nevertheless, if it did, the regulations would provide that the ordinary maternity leave period lasted until the end of the compulsory leave period.

New section 73: Additional maternity leave

126.     This new section and the regulations under it will replace sections 79-84 of the 1996 Act (which provide for an extended period of maternity absence for those with two years' service). The section confers a right to a period of additional maternity leave, as distinct from ordinary maternity leave, for which employees who satisfy certain conditions will qualify. While the current legislation is silent on whether there is a contract of employment during maternity absence, this provision makes it clear that the contract continues by conferring a right to leave rather than a right to return and, under new subsection (4), by providing that terms and conditions of employment (other than remuneration, as for ordinary maternity leave) continue to apply to any extent set out in the regulations. The Government's current intention is that the conditions of employment which are always appropriate during an employment relationship, whether or not the individual is actually working, should continue to apply - such as conditions of confidentiality and mutual trust and confidence. Under new subsection (7) the Government intends to ensure that employees' rights relating to seniority etc will be suspended during the leave and not lost (subject to the provisions of the Social Security Act 1989 which provide for pension rights to continue during any paid maternity leave). Under the provisions in Chapter I of Part XIV of the 1996 Act, the period of leave will count as continuous service for the purposes of determining eligibility for rights under that Act. However, the intention is that in general employers will be free to decide whether or not other terms and conditions will continue during the period of leave.

127.     New subsections (4)(c) and (7) provide for regulations to determine the kind of job to which a woman is entitled to return and the rights she will have and the terms and conditions to which she will be subject when she returns. The intention is to include the current flexibility for employers to offer suitable alternative work where it is not reasonably practicable to take the woman back in her old job.

* Section 235 of the 1996 Act defines job, in relation to an employee, as the nature of the work which he is employed to do in accordance with his contract and the capacity and place in which he is so employed

128.     As well as the terms which are to apply during this leave, the new section 73 gives the Secretary of State powers to prescribe in regulations:

• under new subsection (1), taken with new section 75(2), who qualifies for this additional right. As set out in Chapter 5 of Fairness at Work, it is intended that employees with one year's service with their employer will qualify for additional maternity leave, in contrast to the two years' service required for the current right to maternity absence; and

• under new subsections (2) and (3), the duration and timing of additional maternity leave. The additional maternity leave period is intended to be the period which follows on immediately after the end of the 18 weeks ordinary maternity leave period and which ends within twenty-nine weeks of the birth of the baby. Effectively, this period mirrors the maternity absence period in the current provisions. As now, women entitled to additional maternity leave will be able to take a total of about 40 weeks' maternity leave, but more women will benefit from this entitlement because of the shorter qualifying period.

New section 74: Redundancy and dismissal

129.     Under this new section the Secretary of State may make provision in regulations about the treatment of an employee at any stage during maternity leave when a redundancy situation occurs. It is intended that the regulations will have the same effect as the current provisions in sections 77 and 81 of the 1996 Act, under which women on maternity leave or returning to work must be offered alternative employment where the employer has a suitable available vacancy, thus ensuring that protection of women who are on maternity leave when there is a redundancy situation is not reduced. The reference to dismissal other than redundancy is needed so that the right to return to work can be disapplied where the woman is dismissed during maternity leave (which will be automatically unfair if this is for reasons relating to pregnancy or maternity - see new section 99 inserted by paragraph 18 of Part III of the Schedule - but could be fair, for example, if it related to conduct occurring prior to maternity leave).

New section 75: Sections 71 to 73: supplemental

130.     This new section further prescribes the scope of the powers conferred in the previous new sections for the Secretary of State to make regulations in respect of ordinary maternity leave, compulsory maternity leave and additional maternity leave. Subsection (1) provides that the regulations may:

• (paragraph (a)): set out notice and evidence requirements and procedures to be followed. It is intended that, as now, an employee will be required to notify the employer of her pregnancy and the week the child is expected to be born, and if requested produce medical confirmation. Currently, there are a number of different notification procedures required before maternity leave, after the birth (if required by the employer) and before return to work. This power is intended to be used to rationalise and standardise notice requirements where possible, and the planned consultation will inform how this is to be done. One possibility raised in the consultation on Fairness at Work on which the Government may wish to consult further is whether employers should be required to provide some information about maternity procedures to their employees, with the aim of clarifying rights and responsibilities and avoiding misunderstandings at a later stage;

• (paragraphs (b) and (c)) set out what happens if the notice requirements or procedures are not followed, or if either the employee or (if any notification requirements were placed on the employer) the employer fail to do what they have notified they will do. Under the current provisions a woman can lose her right to return to work if she fails to meet any of the procedural requirements, even where the employer is clear about the woman's intentions, or if she cannot return to work on a date she has notified, for example because of sickness. Some respondents to Fairness at Work argued that losing one's right to return to work was a wholly disproportionate penalty for a technical infringement of the procedures. This provision would allow smaller penalties to be stipulated, for example the start or finishing date for maternity leave could be postponed until the required notice was served. Again, further consultation will inform how this power is to be used;

• (paragraph (d)): set out what happens where the woman has a contractual as well as statutory right. This would enable reintroduction of the current provisions in sections 78 and 85 of the 1996 Act, which allow the woman to choose whichever is better of her contractual or statutory rights in a particular respect;

• (paragraph (e)): make consequential changes to the provisions which set out how to calculate 'a week's pay' under the 1996 Act for the purposes of redundancy payments and compensation for unfair dismissal. This will enable the regulations to ensure that redundancy payments and compensation are based on an employees' normal pay rather than any pay she received while on maternity leave;

• (paragraph (f)): make consequential amendments; and

• (paragraph (g)): make different provision for different cases or circumstances; this is a normal provision allowing some flexibility, and may be used, for example, to cover the situation where a late birth necessitates the extension of maternity leave (see under new section 72 above).

Part VIII, Chapter II: Parental Leave

131.     Part I of Schedule 3 sets out the basis for the parental leave scheme which will be inserted into the 1996 Act as a new Chapter II of Part VIII, following on from the maternity leave provisions. The new rights to parental leave implement requirements of the Parental Leave Directive (Council Directive 96/34/EC), which was applied to the UK by Council Directive 97/75/EC.

New section 76: Entitlement to parental leave

132.     This new section provides that the Secretary of State must make regulations entitling a parent to a minimum of three months leave in order to care for a child, providing qualifying conditions as set out in the regulations are satisfied.

133.     The new section gives the Secretary of State powers to prescribe in regulations:

• under subsection (1)(a): the qualifying period of employment: it is intended that the regulations will provide for a one year qualifying period for the right to parental leave, the maximum period allowed under the Directive;

• under subsection (1)(b): who qualifies in terms of whether they have or will have responsibility for a child;

• under subsection (2)(a): the extent of an employee's entitlement to parental leave in respect of a child. This will enable the regulations to specify the length of leave, which under subsection (4) must not be less than three months, the minimum period required by the Parental Leave Directive;

• under subsections (2)(b) and (4): when parental leave may be taken. This will enable the regulations to set the maximum age of a child in respect of whom parental leave may be taken (which, following the consultation on Fairness at Work, is likely to be below 8 years, the upper limit specified in the Parental Leave Directive). The regulations will also be able to make appropriate provisions for adoptive parents, who may adopt older children or need leave before formal adoption takes place; and

• subsection (5): further details, including circumstances in which employers may postpone leave and flexibility to specify time limits and minimum periods. Factors which might count towards a decision by the employer to postpone the taking of leave by an employee could include a peak business period or a peak absence period, the level of the employee's skill and responsibility, or the difficulty in finding a short term replacement or covering the absence by other means. The regulations could include limits on the number of times or length of time for which leave could be postponed; some of the key options for consideration on timing are whether parental leave should be required to be taken as a single block, or in blocks of minimum length, or at specified times (eg with a proportion to be taken within the child's first year).

New section 77: Rights during and after parental leave

134.     As for additional maternity leave (see under new section 73 above), the employment contract is to continue in existence during parental leave and the terms and conditions of employment, other than remuneration, continue to apply to any extent set out in the regulations. Also, as for additional maternity leave, the Government's current intention is that, while employees will not lose seniority while on parental leave and both they and their employer will continue to be bound by duties of confidentiality and trust etc, employers should be free in general to decide what, if any, other terms and conditions will apply during parental leave.

New section 78: Special cases

135.     This section enables the regulations to make special provision:

• (under subsections (1) and (2)): about redundancy and dismissal. This will enable the regulations to specify, for example, what happens if the job disappears because of redundancy or the employee is dismissed for reasons not connected with parental leave;

• (under subsections (3) and (4)): providing for the option of part-time working over a longer period, perhaps limited to particular circumstances; and

• (under subsection (5)): providing for transfer of parental leave in specified circumstances. The Parental Leave Directive says that, in principle, leave should not be transferable from one parent to another. Regulations could however allow for this if there were appropriate exceptional circumstances.

New section 79: Supplemental

136.     This new section makes supplementary provision as to the scope of the Secretary of State's regulation-making powers. Further consultation will inform how these additional provisions will be used, but some possibilities are set out below. They enable the Secretary of State:

• (under subsections (1)(a), (b) and (c)): to set out procedures to be followed, notices and evidence required, and records to be kept by employers and employees in relation to a period of parental leave. For example, the regulations could specify that employees must:

--    give notice of a specified length,

--    give written notice,

--    give reasons,

--    provide evidence of entitlement, and

--    keep records of leave taken,

     and that employers must:

--    respond within a specified time,

--    give reasons for postponement or refusal, and

--    keep records of leave provided to employees;

• (under subsections (1)(d) and (e)): to specify the consequences of failure to comply with these provisions;

• (under subsection (1)(f)): as for maternity leave, to enable employees to choose to exercise contractual rights, where these are better;

• (under subsection (1)(g)): to make consequential amendments; and

• (under subsection (1)(h)): to make different provision for different cases or circumstances (additional flexibility, as under the maternity leave provisions - see new section 75(1)(g)). This would enable different provision to be made, for example, in relation to adopted children.

137.     New subsection (2) is a technical measure enabling (as for maternity leave under new section 75(1)(e)) provisions in the 1996 Act concerned with the calculation of a week's pay to be modified to ensure, for example, that employees' entitlement to redundancy pay is not reduced because they were on parental leave on the calculation date for that payment.

138.     New subsection (3) provides additional powers to ensure the regulations can make any other provision which may be necessary or expedient to implement the EC Parental Leave Directive or to deal with the UK obligations under the Directive. This power ensures that a single set of regulations can be made covering all provisions on parental leave.

New section 80: Complaint to employment tribunal

139.     This new section provides for employees to complain to an employment tribunal that their employer has unreasonably postponed their leave or obstructed their taking it (for example, by disputing that they qualify for the right). The remedies - a declaration and compensation - are in line with existing remedies in the 1996 Act (for example, under section 51, in relation to time off for public duties), and the new right to time off for domestic incidents (new section 57B, see below).

New section 81: Collective and workforce agreements

140.     This new section provides for collective or workforce agreements to have effect in place of provisions in the regulations, except where the regulations exclude this. In order to ensure that there is no doubt about which employees have what rights, and that they will be able to enforce their rights, this applies only where the agreements are incorporated into the individual's contract of employment. These provisions will be enforceable through the employment tribunals.

Clause 9 and Part II of Schedule 3: Time off for domestic incidents

141.     This clause and Part II of Schedule 3 insert new provisions after section 57 of the 1996 Act giving employees the right to take a reasonable amount of unpaid time off work to deal with a domestic incident. This implements the part of the Parental Leave Directive not implemented by the parental leave provisions. The intention is that this right will allow employees to take necessary time off to deal with an urgent problem where it is reasonable in all the circumstances for them to do so. It is also to ensure that the amount of time off which is reasonable is linked to the amount of time necessary to deal with a short-term problem or make longer term arrangements to deal with it, to the needs of the business and the consequences of the employee's absence, and other factors which may be set out in regulations. For time off to be justifiable, the employee's presence or attendance would be crucial to resolving the problem or, where the incident affects someone other than the employee, to the welfare and/or recovery of that person.

New section 57A: Right to time off for domestic incidents

142.     This new section sets out the basic right for an employee to take a reasonable amount of time off from work, where this is reasonable, to deal with a domestic incident. The types of incidents which are intended to be covered include:

• dealing with the sudden illness or accident of a member of the employee's family or someone who relies on the employee;

• dealing with a crisis relating to a member of the employee's family requiring the employee's immediate attendance, for example to deal with a fracas at school in which the employee's child has been involved;

• dealing with the death of someone close to the employee, or where the employee is the executor or fully responsible for the funeral and other bereavement related arrangements;

• dealing with a domestic crisis such as unavoidable severe damage or disruption to property, like flooding, fire or burglary; and

• making arrangements for looking after children due to the sudden illness or incapacity of the normal carer (which could be the other parent).

143.     Under subsection (3), the Secretary of State is given powers to make regulations. The details will be subject to consultation, but the regulations may:

• (under paragraphs (a) and (b)): specify factors and circumstances to be taken into account to determine whether time off would be reasonable. These could include the circumstances of the business, as well those of the employee;

• (under paragraphs (c) and (d)): specify how much time off is reasonable, with the power to limit the number of days per incident or per period. Whether or not a limit is set, the amount of time off the employee has already taken is likely to be a relevant factor; and

• (under paragraphs (e), (f) and (g)): as for maternity and parental leave, set out requirements in relation to notices, evidence and procedures to be followed and the consequences of not doing so, or not doing what one has notified one would do. The nature of domestic emergencies is such that advance notice may not be possible, but the power would enable the regulations to require, for example, notification as soon as practicable.