Augustine Clement

Under the proposals, the minimum period of maternity leave would increase from the current fourteen weeks to eighteen weeks. The proposals include what is termed a ‘recommendation’ that women would be paid one hundred percent of their salary for eighteen weeks. However, Member States would have the opportunity to set a ceiling on the level of maternity pay in the eighteen week period of ‘at least the level of sick pay’. There is some uncertainty over what the Commission means in this context by ‘sick pay’. If Member States were entitled to cap pay during maternity leave at the level statutory sick pay this would have no effect on the current UK provisions. Both the higher and basic rates of statutory maternity pay are higher than the rate of statutory sick pay and it is a fundamental principle of EC law that Member States cannot use the implementation of a Directive to lower existing levels of protection. If, however, the proposal refers to contractual sick pay, then employers would have to ensure they paid women in their first eighteen weeks of maternity leave at least as much as if they had been absent through illness during that period.

As for the compulsory period of maternity leave, the proposals indicate that this will be increased to six weeks – it is currently two weeks in the United Kingdom. Furthermore, women would no longer be obliged to take a portion of their non-compulsory maternity leave before childbirth, as is currently the situation in a number of Member States.

In the six months after childbirth women would also be able request written reasons for their dismissal. At present women can only request such reasons if they are dismissed while on maternity leave. The Commission has also proposed that women have the right to return to the same job or an equivalent job after maternity leave – this right is, of course, currently enjoyed by women in the United Kingdom.  The revised directive will also contain a right to request flexible working on return to work, although as is currently the case in the UK, employers will be under no obligation to agree to any such request.

The Commission hopes that agreement on the revised Directive can be reached in 2009. Member states will then have 2 years to implement the changes.

Things to do:  Just watch this space, although the bulk of the changes will have very little effect on the current state of employee protection in the UK. What is uncertain is the Commissions proposal on improving the situation of self-employed women by providing equivalent access to maternity leave.  This hopefully will become clearer in the near future.

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