| On 9th March 2006, the government in the UK | | | | that the distinction between 'Ordinary' and 'Additional' |
| published the final draft of one of the most | | | | maternity leave has diminished. |
| important pieces of employment legislation since the | | | | This effectively means that any pregnant employee, |
| 1970s. This legislation came into force on the 1st | | | | regardless of her length of service, will be entitled to |
| October 2006. | | | | a full year of maternity leave. The only differences |
| The legislation applies to employees of all ages, at | | | | which remain between the two forms of maternity |
| any point during the employment relationship (from | | | | leave are some slightly different rights on returning to |
| recruitment to retirement) and provides for the | | | | work, but these depend on the length of leave taken |
| following: | | | | by the employee. |
| § It will effectively outlaw discrimination on the | | | | The law used to stipulate that if employees wanted |
| grounds of age. | | | | to return early from Maternity Leave, they only had |
| § It will outlaw victimisation and harassment on | | | | to give 4 weeks of notice. In order to assist the |
| the grounds of age. | | | | employer, that has now been extended to 8 weeks |
| However, it will also provide a new defence for | | | | notice. It has been commented that one of the main |
| discrimination: the defence of justification. If it can be | | | | difficulties for both the employer and the employee |
| shown that the discrimination was a proportionate | | | | during maternity leave is that of keeping up to date |
| means of achieving a legitimate aim, then an | | | | with important events and work back at the office. |
| employer can use this defence against a claim | | | | The new Regulations introduce the concept of |
| brought against him. Interestingly, it should be noted | | | | "Keeping in Touch days": This is where an employee |
| that the government has removed all guidance on | | | | can agree to work up to ten days during her leave |
| what constitutes a justification defence, but it has | | | | without it affecting her right to be on maternity |
| made it clear that a very high standard of proof is | | | | leave. |
| expected. | | | | It should be noted, however, that there is no legal |
| In addition, the age cap for claiming Unfair Dismissal | | | | obligation on either the employer or employee to |
| has been removed, meaning that those over the age | | | | offer or accept this arrangement, and any pressure |
| of 65 will be able to make such claims. Also, a | | | | from the employer on the employee may be |
| retirement age of 65 has been set. Any dismissal for | | | | considered a detriment, something which the |
| retirement at an earlier age will be deemed unlawful | | | | Regulations deem unlawful. |
| unless justified fully. Retirement at 65 will only be | | | | Although the Regulations have been in force since |
| lawful if the correct procedure, which includes a 'duty | | | | the 1st of October 2006, they interestingly enough |
| to consider a request to continue work', has been | | | | only apply to employees whose expected week of |
| followed. | | | | childbirth (or date of adoption) is on or after the 1st |
| This process starts with a letter to the employee at | | | | of April 2007. Commentators have argued that this |
| least 6 months prior to the intended retirement date | | | | has been a more onerous requirement on employers, |
| of the employee. The employee may then ask the | | | | who may have found that a very new employee has |
| employer to consider allowing him to stay on (this is | | | | disappeared for a year. However, one potential |
| the 'duty to consider a request to continue work') | | | | benefit was that it has ensured that any cover |
| and the employer must subsequently hold a | | | | brought in has had a decent period of time to know |
| consultation meeting with him to discuss the | | | | get to know what they are doing in their new role |
| employee's future. It is also interesting to note that | | | | with the employer. |
| employees will be able to bring claims of discrimination | | | | In addition to the above, the government has also |
| in all areas of employment including recruitment, | | | | made one or two changes to benefit the employer. |
| benefits, pension provision, promotion and training, as | | | | An example being that the length of notice an |
| well as dismissal. Also, this is not just a matter | | | | employee has to give if she wants to return early |
| relevant to older employees: the discrimination against | | | | has doubled - a change which acknowledges that |
| any age group will be caught by the new Regulations. | | | | employers needs time to make arrangements in such |
| Commentators have said that the introduction of | | | | circumstances. |
| these Regulations is arguably the biggest event in | | | | If you require further information please contact us |
| Employment Law in the last 10 years, and requires a | | | | at or Visit |
| complete overhaul of all personnel policies, including | | | | © RT COOPERS, 2007. This Briefing Note does |
| Health Insurance and Retirement Ages. | | | | not provide a comprehensive or complete statement |
| In addition, to the new rules relating to age | | | | of the law relating to the issues discussed nor does it |
| discrimination, there are also new rules relating to | | | | constitute legal advice. It is intended only to highlight |
| maternity leave which came into force at the same | | | | general issues. Specialist legal advice should always be |
| time. The main change which affects employers is | | | | sought in relation to particular circumstances. |