Proposed changes to maternity leave

The European Commission has published its proposals to amend the current Directive on the introduction of measures to encourage improvements in the health and safety at work of pregnant workers and workers who have recently given birth or who are breastfeeding. The main amendments to the Directive are an increase in the length of maternity leave and the introduction of a new and more generous rule on payment during maternity leave. We are seeking employer's views, by 3 November 2008, on what the implication of the proposals could be for the NHS.

The current Directive (92/85/EEC) provides for a minimum of 14 weeks maternity leave, of which 2 weeks must be taken after immediately after childbirth. The amendments propose to extend maternity leave to 18 weeks, of which 6 weeks must be taken after childbirth. This is unlikely to affect the NHS, as currently employees have the right to take 52 weeks maternity leave. Women will also be able to choose when to take the non compulsory portion of the leave and it will be for Member States to decide on notification periods.

The amended Directive also proposes that employees shall receive full pay for the 18 weeks of maternity leave. However this is not mandatory and this payment can be subject to a ceiling which will be determined by Member States, under the condition that the ceiling is not set below the level of sickness pay. Member States will also be able to determine if the level of the payment during maternity leave corresponds to the last monthly salary before maternity leave or if it is an average to be calculated over a certain period.

This provision could have implications for the NHS if the ceiling on maternity pay imposed by the national Government is higher than NHS entitlements. Currently in the NHS, employees receive full pay during the first 8 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.

The proposal to amend the Directive contains further provisions which include:

• After maternity leave, the woman will have the right to return to the same job equivalent post in terms and conditions no less favourable, as well as the right to benefit from any improvement in working conditions to which she would have been entitled during her absence.
• The worker returning from maternity leave has the right to ask her employer to adapt her working patterns and hours and the employer is obliged to consider such a request. The details of exercising the request will be fixed by Member States.
• Under the current Directive, if a woman is dismissed during maternity leave, the employer must duly substantiate the grounds for dismissal in writing. It is proposed the same duty of the employer is extended to cases where a woman is dismissed within six months of the end of maternity leave.
• In the case of childbirth occurring after the due date, the prenatal part of the leave is extended until the actual date of birth without reducing the post natal part of the leave.
• Member States will be able to decide on the length of additional leave to be granted in the case of premature birth, children hospitalised at birth, the birth of children with disabilities and multiple births.

There will be no immediate changes to the legislation as the proposals will now be discussed by the European Parliament and by Member States in the European Council. There is not expected to be agreement on this issue until at least 2009.

We would welcome views from the service on what the implication of the proposals could be for the NHS. We will then be able to feed these views in to European level discussions through our membership of CEEP (European Public Sector Employers) and HOSPEEM (The European Hospital and Healthcare Employers' Association). If you have any views on the proposals then please send them, before 3 November 2008, to: Richard.Dyson@nhsemployers.org