Work and Families Act 2006: maternity, paternity and adoption benefit changes
As part of the Government's 10-year strategy for childcare,
1 Choice for parents, the best start for children: a ten year strategy for children, HMT, 2004 it consulted on measures intended to 'give parents more choice about how to balance their work and family responsibilities'.
2 Work and Families: Choice and Flexibility A consultation document, February 2005 The Work and Families Act 2006 implements some of the measures set out in the Government's response to this consultation. The Act, together with a group of related statutory instruments,
3 Maternity and Parental Leave etc. and the Paternity and Adoption Leave (Amendment) Regulations 2006 (2006 No. 2014); Statutory Paternity Pay and Statutory Adoption Pay (General) and the Statutory Paternity Pay and Statutory Adoption Pay (Weekly Rates) (Amendment) Regulations 2006 (2006 No. 2236); Statutory Maternity Pay, Social Security (Maternity Allowance) and Social Security (Overlapping Benefits) (Amendment) Regulations 2006 (2006 No. 2379) contains amendments to legislation relating to maternity, paternity and adoption benefits.
Susan Mitchell outlines the main changes.
Extension of allowance and pay periods
The Work and Families Act 2006 amends ss.165 and 171ZN of the Social Security Contributions and Benefits Act 1992 to extend the maximum period that may be prescribed for payment of maternity allowance (MA), statutory maternity pay (SMP) and statutory adoption pay (SAP) from 26 weeks to 52 weeks. However, there is to be a staged implementation to the objective of 52 weeks' benefit.
From 1 October 2006, the maximum period of payment of:
4 s.35(2) SSCBA 1992; Reg 2 SMP(Gen) Regs 1986 as inserted by S.I. 2006 No. 2379; reg 21(5) SPP&SAP (Gen) Regs 2002 as amended by S.I. 2006 No. 2236 •MA (i.e., the maternity allowance period - MAP);
•SMP (the maternity pay period - MPP); and
•SAP (the adoption pay period - APP) will be extended from 26 weeks to 39 weeks.
This change will only affect:
•women whose baby is expected to be born on or after 1 April 2007 (NB, it is when the baby is expected that is decisive and not when the baby is actually born); and
•adopters if the child is expected to be placed for adoption on or after 1 April 2007.
For SMP, the first six weeks pay will be 90 per cent of the average weekly earnings and the remaining 33 weeks will be the lesser of £108.85 or 90 per cent of her average weekly earnings.
If the expected date of birth is before 1 April 2007 or the child is expected to be placed for adoption before that date, the maximum period of entitlement to MA, SMP and SAP will remain at 26 weeks.
The Government has not specified a date from which it intends to increase the MAP, MPP and APP from 39 to 52 weeks but has only stated that it aims to increase the allowance and pay periods to 52 weeks before the end of Parliament.
From 1 October 2006, there have also been related changes to maternity leave provisions. From that date female employees whose baby is expected to be born on or after 1 April 2007 may qualify for up to 26 weeks' 'additional maternity leave' after their 26-week period of 'ordinary maternity leave' expires, irrespective of the length of their employment with their employer. Women in this position will therefore no longer have to satisfy any minimum period of employment to qualify for 'additional maternity leave'.
A woman whose baby is expected before 1 April 2007 will only qualify for additional maternity leave if she has worked for her employer for a continuous period of 26 weeks at the beginning of the 15th week before expected week of childbirth (EWC).
This change in the entitlement rules for additional maternity leave is necessary to ensure that women who have not worked for their employer for 26 weeks at the beginning of the 15th week before the EWC are not entitled to just 26 weeks' maternity leave when they may qualify for 39 weeks' MA. (Female employees who have not worked for their employer for a period of at least 26 weeks ending with the 15th week before the EWC are not entitled to receive SMP, but may be entitled to MA).
Working while entitled to MA, SMP or SAP
The new rules also introduce 'keeping in touch' days from 1 October 2006. These rules only apply to women whose baby is expected to be born on or after 1 April 2007 and to adopters in respect of children expected to be placed for adoption on or after that date. The rules allow:
5 Reg 2 SS(MA) Regs 1987 as amended by S.I. 2006 No. 2379; reg 9A SMP(Gen) Regs 1986 as inserted by S.I. 2006 No. 2379; reg 27A SPP&SAP (Gen) Regs 2002 as inserted by S.I. 2006 No. 2236 •a woman to work for up to 10 days during her MAP, either as an employee or in self employment, without being disqualified from receiving MA. (Any work done in excess of 10 days will result in a disqualification from MA for at least the number of days worked in excess of those 10, - e.g., if a woman works for 12 days she will be disqualified for at least two days);
•employees to carry out up to 10 days' of paid work under their contract whilst still remaining entitled SMP or SAP for those days.
In either case, the 10 days do not need to be consecutive. 'Keeping in touch' days are optional - an employer does not have to provide such work and cannot insist that an employee works during the maternity leave period.
6 Reg 12A Maternity and Parental Leave etc. Regulations 1999 (1999 No. 3312) as inserted by S.I. 2006 No. 2014; reg. 21A Paternity and Adoption Leave Regulations 2002 (2002 No. 2788) as inserted by S.I. 2006 No. 2014Start of the MPP and MA period
From 1 October 2006, the normal rule will be that SMP and MA will start from the day after an employee stops work and starts maternity leave. Prior to 1 October 2006, MA and SMP normally began on the Sunday after she stopped work. This change is intended to make it easier for employers to align SMP with their payment systems. The daily rate of MA, SMP SAP and ordinary statutory paternity pay will be one seventh of the weekly rate.
7 ss.165, 166, 171ZE and 171ZN SSCBA 1992 as amended by W&FA 2006 sch 1 paras 7; 8, 16 and 21; s.35(5) as amended by s. 69 of the Social Security Act 1998; reg 2 SMP(Gen) Regs 1986 as inserted by S.I. 2006 No. 2379 Future extension of SPP
The Work and Families Act 2006 also contains provisions to allow the introduction of 'additional statutory paternity pay'.
8 s. 6-10 Work and Families Act 2006 This, in effect, will enable mothers and adopters to transfer a proportion of their maternity or adoption leave and pay to their partners. Although the details of the scheme will be contained in regulations, the Act indicates that entitlement will be dependent on, amongst other things:
•the employee's relationship with the child and with the child's mother or adopter (or co-adopter);
•the employee satisfying a continuous employment condition and an earnings condition (the employer's normal weekly earnings must be at least equal to the lower earnings limit for national insurance); and
•the mother or adopter returning to work while a least a prescribed portion of her MAP, MPP or APP remains.
The additional paternity pay will not be paid for any period falling more than 12 months after the date of the child's birth or placement for adoption, and will not be paid for any period falling within a prescribed period after the birth or adoption, nor after the end of the mother's or adopter's maximum MAP, MPP or APP.
The stated intention, although this is not contained in the Work and Families Act 2006, is that additional paternity pay will be payable for up to 26 weeks. The Government is yet to publish its response to a public consultation on paternity pay provisions but has said that it intends to introduce additional paternity pay before the end of Parliament.
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