Published: 24/02/2005, Volume II5, No. 5944 Page 38

There was a collective sigh of exasperation from employers when the government announced in December that it intended to change the law governing maternity regulations. Again.

And who can blame them? The law is already a mish-mash of statutes and regulations, some of which are contradictory, because different governments have changed or added to the legislation over the years. Even employment lawyers and human resources experts struggle to make sense of them.

For instance, although the Maternity and Parental Leave (Amendment) Regulations 2002 refer to the 14th week of pregnancy as the crucial cut-off point for entitlement to additional maternity leave, in reality it is the 15th week that counts because of the wording in section 212 of the 1996 Employment Rights Act.

Ordinary maternity leave is much more straightforward, in that the woman only has to be an employee to qualify.

However, for some employers this distinction may not be entirely straightforward, as most have no idea of the differences in terms of the legal rights of the employed and self-employed.

And, of course, there are the added complications of different contractual entitlements during ordinary, as opposed to additional, maternity leave.

Statutory maternity pay is more complex again, with employers having to work out a number of critical dates. In particular, whether the woman earns more than the lower earnings limit over an eight-week 'relevant' period ending with the 15th week before the baby is due.

From April, employers will have to adjust these calculations if they award a pay rise which comes into effect any time between the start of the relevant period and the end of the woman's maternity leave. This applies even if the pay award is not backdated to a date that falls within that period.

Then there are the different formulae that employers have to use, depending on whether the woman is paid weekly, monthly or on an irregular basis. If the baby is premature, there is another formula again. Ditto for agency and seasonal workers.

It is clear that the regulations are in desperate need of simplification. So I have decided to tackle the job and am currently consulting with a number of organisations, representing both employers and employees, to find out what changes they most want to see.

My aim is to draw up a set of proposals to put to government (specifically, the better regulation task force), to radically reform the legislation (see box). The ultimate aim is to have one set of regulations governing maternity rights, written in plain English so that everyone can understand them.

Alison Clarke is an employment lawyer and freelance journalist. You can buy a copy of her book Maternity Pay and Leave: a guide for employers (£5) by visiting www. maternity-pay. co. uk or calling 0845456 9420.

The proposed reforms

Statutory maternity pay

That all pregnant women who work (apart from the self-employed) should be entitled to SMP.

A woman's pay for the first six weeks (or possibly longer) should be her contractual pay on the day her leave starts.

The rest of the period should be paid on a straight flat rate (with no percentage reduction for lower-paid women).


Maternity leave of one year should be available to all working women who are pregnant.

There should only be one type of leave.

That all contractual rights should continue uninterrupted throughout the period of leave.