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October 2008 Updates

Changes to maternity and adoption leave rights

With effect from 5th October 2008, additional maternity leave ("AML") and additional adoption leave ("AAL") have been brought into line with ordinary maternity leave ("OML") and ordinary adoption leave ("OAL") in relation to contractual rights of employees on maternity or adoption leave. This means that a woman whose baby is due (or is due to have a child placed for adoption) on or after 5th October 2008 will be entitled to the same terms and conditions as they are entitled to whilst on ordinary maternity or adoption leave.

Prior to 5th October 2008, during OML or OAL a woman was entitled to the benefit of all of her terms and conditions of employment which would have applied had she not been on maternity or adoption leave, except remuneration (wages and salary). However, during AML or AAL, the terms and conditions which applied were much more limited (e.g. terms relating to notice, redundancy pay, disciplinary and grievances and the implied duty of mutual trust and confidence).

From 5th October 2008, a woman is entitled to the same contractual entitlements and benefits throughout her period of maternity or adoption leave, irrespective of whether it is OML/OAL or AML/AAL. Such entitlements and benefits include the right to accrue contractual (as opposed to statutory only) annual leave, company car/car allowance and mobile phones (as long as they are provided for private as well as business use), private medical insurance and life assurance.

The October changes do not affect the previous position in relation to return to work. It is still the case that a woman has the right to return to the same job following OML/OAL and the right to return to the same job, or if that is not reasonably practicable a suitable job on terms which are no less favourable than the original job, following AML/AAL.

Time off for emergencies

The Employment Appeal Tribunal has held in the case of RBS v Harrison that entitlement to parental leave because of the unexpected disruption or termination of care arrangements for dependants is not limited to last minute unavailability or emergencies. In this particular case, the employer sought to argue that as the employee had been notified of the unavailability of her child minder two weeks beforehand, the termination of her care arrangements could not be said to be unexpected. However, the EAT held that the passage of time between the employee's discovery of the forthcoming disruption of care arrangements and that disruption taking effect was to be considered as part of the question whether it was "necessary" for an employee to take the time off. Furthermore, the word "unexpected" does not involve a time element, i.e. it does not need to be sudden and unexpected.

Rest breaks and the Working Time Regulations

The Employment Appeal Tribunal has held in the case of Commissionaires Management v Hughes that an employee is only entitled to one rest break within their first six hours of work. They are not entitled to a subsequent rest break if they work for twelve hours. Furthermore, where a rest break cannot be taken at the correct time due to the demands of the business, a proper compensatory rest break must be offered. It is not enough to say that an employee can rest between shifts.

Names of all Respondents in Employment Tribunal proceedings to be published

The Information Commissioner's Office has ruled that the identity of all Respondents to Employment Tribunal cases has to be disclosed by the Department for Business, Enterprise and Regulatory Reform ("BERR") under a Freedom of Information Act request. Details of parties to Tribunal Cases previously appeared in a Register, but this ceased in 2001 following concerns that commercial organisations targeted parties (including represented parties) offering to represent them in tribunal cases.


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SRA number 404293