22 / 1 / 2009
The European Commission published proposals in late 2008 to amend Directive 92/85/EEC which sets minimum rules relating to the health and safety at work of pregnant workers, and workers who have recently given birth, or who are breastfeeding. Key changes proposed include an increase in the length of maternity leave and more generous rules on payment during maternity leave.
Proposed changes and their possible impact on the NHS
Length and timing of maternity leave
The current Directive provides for a minimum of 14 weeks' maternity leave, of which two weeks must be taken immediately after childbirth. The proposal is to extend this to 18 weeks, including a compulsory six weeks after confinement. Women would have more choice over when to take the non compulsory portion of leave, with notification periods set at national level. UK law already provides the right to 52 weeks maternity leave, so, if agreed, the impact of these changes on the NHS is likely to be small.
Pay during maternity leave
The proposal is that employees should receive full pay for the 18 week maternity leave period. However, it is also proposed that member states should be able to set a ceiling on the level of pay, provided it is no lower than the level of sickness pay. Member states would also be able to determine if the level of the payment corresponds to the last monthly salary before maternity leave, or if it is an average to be calculated over a certain period.
Currently in the NHS, employees receive full pay during the first eight weeks of maternity leave, followed by 18 weeks at half pay (plus any Statutory Maternity Pay or Maternity Allowance) and then 13 weeks of any Statutory Maternity Pay or Maternity Allowance to which the employee is entitled. If agreed, therefore, the impact of the pay proposals on the NHS would depend on whether the ceiling on maternity pay imposed by the national Government was higher than current NHS entitlements.
The proposal also seeks to introduce rights to return to the same or an equivalent post and to request flexible working, as well as enhanced protection against dismissal, but all of these changes are broadly in line with existing UK law so would have minimal or no impact.
The Department for Business, Innovation & Skills (BIS) carried out a public consultation in 2009 on the possible implications for the UK of the Commission's proposals. The Partnership of Public Employer (PPE) responded to this consultation on behalf of public sector employers and NHS Employers, as a PPE member, contributed to the response to ensure it reflected NHS views.
State of play in Europe and next steps
The full European Parliament agreed with its Women's Rights and Gender Equality (FEMM) Committee and adopted a report suggesting a number of additional amendments in October 2010. Their proposed changes included:
- minimum maternity leave of 20 weeks
- full pay, with no ceiling, throughout maternity leave
- introduction of two weeks' paternity leave
In December EU ministers started discussions on the proposals in Brussels. Various Member States, including the UK, expressed concern about the cost implications of the directive and some compromises were suggested.
No firm conclusion was reached, but the Belgian Presidency announced their intention to reflect further on the best way of achieving a balanced outcome in respect of this draft Directive, together with the social partners.
The NHS European Office is actively involved in social dialogue in Europe on behalf of public sector employers and will promote the NHS' interests by engaging fully in these discussions.
In order for the proposals to become law, the European Parliament and the Council of Ministers would need to agree on a common text. There would then be an implementation period (proposed to be two years) to give member states and employers time to adjust their systems to comply with the new requirements. In the meantime, existing rules on maternity leave remain in force.