Premature Babies and Maternity Leave – The Legal Position
Published byMartin Stephen
Mothers of premature babies are campaigning for statutory maternity leave to be extended where mothers give birth early.
The “Smallest Things” Campaign is seeking one weeks’ extra leave for every week parents of premature children have to spend waiting for their children to be allowed home from hospital.
On 26th October 2016 Labour MP Steve Reed, made a Motion in Parliament for a Full Debate on potential changes to the law on maternity leave to take account of premature births. He proposed the introduction of the Maternity and Paternity Leave (Premature Birth) Bill to amend Part 8 of the Employment Rights Act 1996 to make provision about maternity and paternity leave for parents of babies born prematurely.
Birth Triggers Maternity Leave
If a baby is born early and maternity leave has not already commenced, the mother’s leave starts on the day after her baby was born.
An employee’s maternity leave will also be triggered if she is absent from work for a pregnancy related reason in the four week period before the expected week of confinement (EWC).
Mothers are entitled to 52 weeks leave made up of 26 weeks ordinary maternity leave and 26 weeks additional maternity leave. There is currently no mechanism in maternity leave laws for leave to last longer where babies are born prematurely.
Mothers with 26 weeks service are entitled up to 39 weeks statutory maternity pay.
Even where a birth is premature the mother must notify the employer as soon as reasonably practicable:
- That she has given birth early; and
- The date on which her baby was born.
Employers then re-calculate maternity leave and end date.
It is likely the employer and the new mother will already have discussed when maternity leave will begin and end based on the employee’s EWC. However an early birth triggers the start of maternity leave. As statutory maternity leave is set at 52 weeks this means the end of the employee’s maternity leave is brought forward.
Possible Changes to Maternity Leave: Two Options
The two options for changes to statutory maternity leave to take account of premature births have been put forward:
- The Smallest Things Campaign suggests the introduction of one weeks leave for each week parents of premature children have to spend waiting in hospital for the children to be allowed home;
- Another option put forward by Bliss, a charity for babies born prematurely or sick, is that new mothers who give birth early could be guaranteed 12 months leave starting from the original EWC.
Is the change to Maternity Laws likely
The proposed changes raise a number of issues:
- Will the extended period of leave be paid or unpaid;
- The extended period of leave would extend the protected period. This is a period during which pregnant mothers are protected from unlawful pregnancy related discrimination. The protected period begins when the woman becomes pregnant and ends at the end of ordinary maternity leave or additional maternity leave, or where the employee does not have the right to such leave, at the end of the period of two weeks beginning with the end of the pregnancy;
- Rights to shared parental leave will be affected.
The earliest date a pregnant mother can start her maternity leave is the 11th week before EWC, unless the child is born earlier. Many mothers elect to start their maternity leave at 25 weeks. What then is the position if their baby arrives prematurely? Is the leave extended automatically in circumstances where the mother would have been on maternity leave before the baby was born?
While the amendments to the law would seem relatively straightforward, it is unlikely that employers will face a requirement in the near future to provide extra leave for premature births. Private Members’ Bills rarely get enacted and a spokesman for the Department of Business Energy and Industry Strategy has said “The UK’s maternity system is one of the most generous in the world. The current system strikes the right balance between the need of new mums, including those whose baby has been born prematurely, and employers”.
Conclusion
Employers should bear in mind that a premature birth is one of the most stressful events that a new parent can face and there are steps that employers can take to support employees in this situation.
Where a new mother gives birth early, line managers should be encouraged to strike the balance between:
- Keeping in touch with the employee to provide support (for example an Employee Assistance Programme) and discussing the impact on maternity leave; and
- Reorganising when parents may want to be left to their own devices during this difficult period.
A key way in which employers can support employees with a premature birth is to allow flexible working once maternity leave ends.
Should you have any queries about maternity leave, or anything to do with employment law, please do not hesitate to contact a member of the WJM employment team on 0141 248 3434.
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