NASUWT

The Teachers Union

MATERNITY, PATERNITY AND ADOPTION LEAVE AND PAY

Paternity Paternity Adoption Adoption

The largest teachers union in the UK

Maternity Maternity

CONTENTS
Health and safety at work A healthy working environment Antenatal care Work/life balance Discrimination and pregnancy Protection against detrimental treatment and unfair dismissal Leave entitlement Maternity leave Keeping in touch days School contact during maternity leave Pay and pension Maternity pay Eligibility for occupational and statutory maternity pay Maternity Allowance Effect of changing schools or sector Teachers on temporary contracts Sickness and maternity Maternity leave and pension NASUWT membership during maternity leave Return to work Return to work Right to request flexible working Holidays and maternity leave Written notification Childcare vouchers Other types of leave Adoption leave and pay Paternity leave and pay Parental leave Time off for family and domestic reasons Future improvements Statutory maternity and adoption pay Additional paternity leave and pay Appendix 1 Glossary of terms Appendix 2 Eligibility for occupational and statutory maternity pay Appenidx 3 Maternity leave and pay flowchart

PAGE
4 5 5 5 5 6 6 6 6 7 7 7 9 9 9 10 10 11 12 12 13 14 14 15 15 16 16 17 18 20

This advice booklet contains detailed information on the maternity rights of teachers working in schools in the public sector in England and Wales. The flowchart in Appendix 3 acts as an easy reference for entitlements. If you are in any doubt about your rights or require assistance, you should contact your NASUWT Local Secretary or Regional/National Centre. The leaflet incorporates the changes made to statutory maternity and adoption pay from April 2009.

HEALTH AND SAFETY AT WORK

A healthy working environment A healthy, pregnant woman can generally do most of the jobs she did before she became pregnant. However, employers are required to protect the health and safety at work of all employees and there is extra protection for pregnant women. The employer must carry out an initial risk assessment of the job to identify any risks to the woman or her unborn child. Subsequent assessments should be undertaken if there are any changes to the job and the teacher can request an assessment if her condition requires this. These risks might be caused by: lifting or carrying heavy loads; standing or sitting for long periods; exposure to toxic substances; long working hours.

If a risk is identified, the employer should first try to remove the risk. If this is not possible, further steps should be taken to change the womans working conditions. If neither of these is possible, the employer should suspend the teacher from work on full pay. The NASUWT maintains that an employer should accede to the types of requests outlined below. A later start in the day if you experience morning sickness during the first three months of pregnancy. Exemption from duties that cause discomfort during the later months of pregnancy, e.g. standing for long periods. Avoiding lifting and bending in the later months of pregnancy. The provision of rest facilities where you can lie down. These should be close to sanitary facilities. Members who are concerned that their working practices or working environment are putting them at risk, and their employer does not agree, should consult the NASUWT Representative and the Health and Safety Representative in their school. A Guide for New and Expectant Mothers Who Work is available on the Health and Safety Executive website at www.hse.gov.uk. 4

Antenatal care Any pregnant teacher, however long she has been in the post, is entitled to reasonable time off work for antenatal care paid at her normal rate of pay. She must produce evidence of appointments if requested to do so by her employer. Work/life balance Teachers have a contractual entitlement to enjoy a reasonable work/life balance. The School Teachers Pay and Conditions Document (STPCD) has been amended to reflect this:

A head teacher must have regard to the desirability of teachers at the school being able to achieve a satisfactory balance between the time required to discharge their professional dutiesand the time required to pursue their personal interests outside work. (Section 2, paragraph 57.3.)
Discrimination and pregnancy It is unlawful sex discrimination for employers to treat women less favourably because of their pregnancy or because they take maternity leave, for example: trying to cut your hours without your permission; suddenly giving you poor performance management reviews; giving you unsuitable work; making you redundant because of your pregnancy; treating days off sick due to pregnancy as a disciplinary/capability issue.

Your employer cannot change your terms and conditions of employment while you are pregnant without your agreement. If they do, they will be in breach of contract. You should contact your Regional/National Centre as soon as possible for assistance. Protection against detrimental treatment and unfair dismissal A woman has protection against dismissal or unfair treatment that has occurred simply because she is pregnant or has given birth, or is seeking to take parental leave. If you are in this position, you need to contact your NASUWT Regional/National Centre for further help and advice as soon as possible as there are short time limits within which any appropriate legal action would have to be initiated.

LEAVE ENTITLEMENT
Maternity leave All pregnant workers are entitled to 52 weeks maternity leave regardless of length of service, hours worked or size of employer but it is necessary to comply with notice requirements. The 11th week before the expected week of childbirth (EWC) is the earliest date maternity leave can start but it is not necessary to start on that date. The latest date the maternity leave can start is the EWC. A woman may begin a second period of maternity leave immediately following maternity leave without returning to work in between. In these circumstances, occupational maternity pay will be paid but it is unlikely that she will qualify for statutory maternity pay (SMP) as she would need to have worked in the eight weeks prior to the 15th week before the new EWC. However, she may qualify for Maternity Allowance. Keeping in touch days Women can take up to ten keeping in touch days during their maternity leave when they can go into work without ending their maternity leave or losing maternity pay. These days could be used for catching up with what is going on in the school, for training or to work. The employer does not have to offer these days and the employee is not obliged to accept them. Women are protected against any detrimental action for refusing the days. Each keeping in touch day constitutes a days work and the teacher should receive full pay for these days. School contact during maternity leave The employer has the right to make reasonable contact with the employee while she is on maternity leave. It could be to discuss plans for returning to work, or to keep her informed of important developments at the workplace. The employee should be informed of any promotion opportunities or job vacancies that arise during maternity leave. The amount and type of contact must not be excessive or intrusive and you should contact your Regional/National Centre if you are concerned.

PAY AND PENSION

Maternity pay For the majority of women teachers there are two schemes that run side by side, the occupational scheme and the SMP scheme. The SMP regulations contain eligibility conditions that are different to the occupational scheme. The occupational maternity leave scheme is defined in your conditions of service/contract of employment. For school teachers in local authority maintained schools, this is defined in the Conditions of Service for School Teachers in England and Wales, known as the Burgundy Book. Please see Appendix 2.

Teachers who are employed in academies or independent schools will only be subject to the Burgundy Book conditions if their contract contains these provisions. Otherwise they will be entitled to the SMP scheme and any other better provisions included in their conditions of service. Any pay rise awarded after the beginning of the period used to calculate SMP (the eightweek period ending with the 15th week before EWC) but before the end of the maternity leave period, must be taken into account when calculating the amount of SMP payable. The details given in this booklet are those of the basic national scheme (Burgundy Book) but some local authority employers may have made improvements to this. Request an information leaflet from your employer. Eligibility for occupational and statutory maternity pay Appendix 2 gives details about eligibility for occupational and statutory maternity pay. Appendix 3 at the back of this leaflet gives a summary of maternity leave and pay. Maternity Allowance Women who do not qualify for SMP may qualify for 39 weeks Maternity Allowance, if they have been employed for at least 26 weeks in the 66 weeks ending with the week before the EWC. Maternity Allowance is 123.06 a week from April 2009. Application for Maternity Allowance should be made at your local Jobcentre Plus office. EVEN IF ON CHANGING JOBS THERE IS CONTINUITY OF SERVICE, A CHANGE OF EMPLOYER MAY AFFECT YOUR ENTITLEMENT TO SMP Effect of changing schools or sector The existing eligibility conditions for SMP are different from those determining entitlement to occupational maternity pay as defined in the Burgundy Book. Changing jobs, or the status of the school, can affect your maternity entitlements.

School move In same local authority To a different local authority

SMP Continuity maintained Continuity broken

Occupational scheme (Burgundy Book) Continuity maintained Continuity maintained. However, with foundation schools there is only automatic continuous service if the move is between the local authority and a foundation school in the same local authority.

Further education (FE) college and academies to local authority

Continuity broken

Continuity broken unless conditions of service state that service in FE and academies is deemed continuous for this purpose. Continuity broken unless conditions of service state that service in FE and academies is deemed continuous for this purpose. National agreement on conditions of service state that service with a local authority is deemed continuous for this purpose. However, members must check their contracts to ensure this provision is incorporated into it.

Local authority to FE college or academies

Continuity broken

Local authority to sixthform college

Continuity broken

Sixth-form college to local authority

Continuity broken

Continuity broken unless conditions of service state that service in sixth-form college is deemed continuous for this purpose.

Teachers on temporary contracts It is possible for teachers who are on temporary contracts to take maternity leave. The same eligibility conditions apply to these teachers as to permanently employed teachers. If the contract ended while the teacher was on maternity leave, occupational maternity pay would cease but SMP would continue to be payable. There is no obligation on the employer to renew the temporary contract. However, if it is not renewed, it will amount to a dismissal and if it can be shown that the reason for non-renewal was due to the pregnancy, it will be treated as automatically unfair dismissal and direct sex discrimination. If the reason for non-renewal is the fact that there is a redundancy situation, the employer will be obliged to offer her any suitable available vacancy. In either of these circumstances, contact your Regional/National Centre for further advice. More information regarding temporary contracts can be found in the NASUWT Temporary Contracts leaflet. Sickness and maternity Absence on account of illness that occurs outside the period of absence for maternity, or absence due to miscarriage, is treated as ordinary absence on sick leave. However, sickness absence from the fourth week before the EWC but prior to the notified date of commencement of leave will trigger the start of maternity leave. Under employment legislation, a woman who is unable to return to work on the notified date of return due to sickness will end her maternity leave and begin normal paid sick leave. A medical certificate will be required. To retain your full occupational maternity pay you need to return to work for a minimum of 13 weeks. If you delay your return because of sickness, the sick leave will not count as part of the 13 weeks. Maternity leave and pension A teacher who is a member of the Teachers Pension Scheme (TPS) contributes 6.4% of their salary to the Scheme. During paid maternity leave, pension contributions are deducted at the same rate from the teachers maternity pay. Even though the teacher is on a reduced salary during this time, maternity leave is treated as normal pensionable service and the teacher does not suffer any reduction in pension rights as a result of 9

taking paid maternity leave. Only service on which contributions have been made can count in the Scheme and therefore any period of unpaid maternity leave does not count in the calculation of retirement benefits. It is possible to purchase additional pension; further information is available on the Teachers Pensions website www.teacherspensions.co.uk. NASUWT membership during maternity leave Members going on maternity leave should ensure that whilst they are employed they retain full membership in order to call upon the services of the Union if any problems arise with their employer. However, members are reminded that should their amount of teaching drop below 50% of the calendar year, they will be entitled to pay their subscription at the reduced rate applicable to part-time teachers. Part-time teachers get the full service of the Union. Members who decide to terminate their employment at the end of their maternity leave are encouraged to take out career break membership, which is specifically intended to provide advice and information to those who are taking a break and to facilitate their eventual return to the classroom. If you require this service or wish to reduce your subscription, write to the Membership Team, NASUWT, Hillscourt Education Centre, Rednal, Birmingham B45 8RS. A leaflet describing career break services is available on request.

RETURN TO WORK
Return to work If the teacher wishes to return to work earlier than the end of her full maternity leave, she will need to give her employer the new date of return within a specific notice period. Wherever possible, the full statutory notice period of eight weeks should be given. However, if the teachers conditions of service is the Burgundy Book, only 21 days is contractually necessary. Some local agreements may have changed the 21 days to 28 days and, if this is the case, 28 days is required. Where statutory and contractual changes differ, the woman can choose whichever right is, in any particular respect, the more favourable. If you only take ordinary maternity leave (weeks 1 to 26), you have a right to return to the same job in the same capacity in which you are employed under your contract of employment. If you take additional maternity leave (weeks 27 to 52), you have a right to return to the same job or one that is not significantly different from the one specified in your contract. Under legislation, this includes seniority, terms and conditions, pension rights and similar rights associated with your post. If you have been working full time, you could request to return to work on a part-time basis, which could be in the form of a job share. Due to case law and changes to employment rights, it is now more difficult for an employer to refuse part-time work or more particularly a job-share arrangement. If you are experiencing difficulties, contact your NASUWT Regional/National Centre for advice. 10

In order to retain all your occupational maternity pay, you can be required to return to work for 13 weeks, based on your normal working week. If you change from full to parttime employment, your employer can require you to work the equivalent of 13 full-time weeks on return from maternity leave. If you do not return for this length of time, your employer can ask you to repay the 12 weeks half pay element of your maternity pay. You will not be required to repay the full pay element or SMP/MA. A teacher who returns to work in part-time employment rather than to her original fulltime job will need to establish the precise terms under which she is returning. The following objectives should be established: 1. availability for work should be on specified days for a specified number of sessions a session is a full morning or afternoon; 2. employment should not be less than for a full session. Any work undertaken within a session should be paid as a full session. This will avoid the exploitation of parttime teachers being paid only for lessons taught while they are in effect required to be on site for the entire session; 3. contracts should either specify the days and times during which the sessions will be worked or should state that such days and times will be mutually agreed; 4. there should be no provision for the unilateral variation of the number of sessions to be worked or their days and times but there could be a clause that provides for such variation to be made by mutual agreement; 5. there should be no requirement to attend INSET days except where these fall on days when the teacher would normally be at work. The number of INSET days attended should not be greater than the proportion of the full-time contract worked. Right to request flexible working Parents of children aged under 17 or of disabled children aged under 18 will have the right to apply to work flexibly. There is also the right to request flexible working for employees who have a caring responsibility for relatives of any age who live with them or who are a near relative. The near relative definition includes a parent, parent-in-law, adult child, adopted adult child, sibling (including those who are in-laws), uncle, aunt or grandparent and step-relatives. There is no automatic right to work flexibly, only a right to make the request, but employers have a statutory duty to consider these requests seriously. The procedure is as follows: 1. the employee has to make a detailed application in writing. Only one application can be made in a year and an accepted application will mean a permanent change to the employees terms and conditions of employment, unless it is mutually agreed that the change will only be for a specific period of time;

11

2. within 28 days, the employer will arrange to meet with the employee to discuss the application. The employee can be accompanied at this meeting by their NASUWT Representative or fellow worker employed by the same employer; 3. within 14 days of the meeting, the employer will write to the employee either: agreeing to the request and suggesting a start date; rejecting the request, and providing a clear reason why the application cannot be accepted; or suggesting further action necessary before a decision can be reached. If the request is rejected, the employee has a right of appeal within 14 days of the notification. More information regarding flexible working can be found in the NASUWT Flexible Working leaflet. If you are experiencing difficulties contact your NASUWT Regional/National Centre. Holidays and maternity leave Teachers covered by the Burgundy Book and STPCD do not have a holiday entitlement as the days on which they have to be available for work are defined instead of a prescribed annual leave entitlement. Where maternity leave is concerned, there is no distinction between term time and the school holidays. A teacher can therefore begin and end her maternity leave during holiday periods. It is possible to begin maternity leave at the start of a term and return at the beginning of a school holiday. A teacher therefore is unlikely to have a year when she does not get the minimum requirement of four weeks leave under the Working Time Regulations. Written notification The following are examples of the written notification that women members should be advised to write to their employers. 1. By the 15th week before EWC. Dear Ms Smith, This is to let you know that: (i) I am pregnant. (ii) My expected week of childbirth is (iii) I will be starting my maternity leave on... Yours sincerely Ms Jones

12

2. A woman must give her employer 28 days notice if she wishes to change the start of her maternity leave. Dear Ms Smith, This is to let you know that I wish to change the start date of my maternity leave from to ... Yours sincerely Ms Jones 3. A further letter to the employer is required if the return date is before the end of her full entitlement. Eight weeks notice should be given but if this is difficult and conditions of service are the Burgundy Book, 21 or 28 days notice is required. Dear Ms Smith, This is to let you know that I am returning to work on Yours sincerely Ms Jones Childcare vouchers Childcare vouchers can be purchased through a salary sacrifice arrangement. This is an arrangement under which employees give up the right to receive part of their gross salary in return for the employers agreement to provide a benefit-in-kind, childcare vouchers. Salary sacrifice is not the same as a deduction from pay. The sacrifice is achieved by varying the employees terms and conditions of employment relating to their gross pay. As the gross pay is reduced, there is a reduction in the amount the teacher pays in income tax and national insurance contributions. Although teachers are eligible to enter childcare voucher schemes there is no requirement on employers to offer the schemes. However, the only cost to employers of participation is administration and this should be minimal. Each parent can have a salary sacrifice of up to 55 a week for childcare vouchers. Childcare vouchers can be used to pay for childcare for 0-16 year olds, including: day nurseries, childminders and before and after school clubs. A salary sacrifice scheme reduces pay and there are therefore some potential areas that could be adversely affected. Sick pay and maternity pay would be based on the lower salary and tax credits could be affected. Further information is available at www.hmrc.gov.uk/childcare. Working Tax Credit/Child Tax Credit Helpline 0845 300 3900 (textphone 0845 300 3909).

13

OTHER TYPES OF LEAVE

Adoption leave and pay Adopters are entitled to up to 39 weeks paid adoption leave followed immediately by 13 weeks unpaid adoption leave. It will be available to individuals who adopt and one member of a couple where a couple adopts jointly. The partner of an individual who adopts, or the other member of a couple who are adopting jointly, may be entitled to paternity leave and pay. To qualify, the employee must be newly matched with a child for adoption by an approved agency and have worked continuously for the same employer for 26 weeks up to the date they are notified of being matched with a child for adoption. Adopters will be required to notify their employer of their intention to take adoption leave within seven days of being notified of being matched with a child for adoption. Statutory adoption pay will be 123.06 per week or 90% of actual pay, whichever is the lower. This will be payable for up to 39 weeks. The leave can start either from the date of the childs placement or from a date up to 14 days before the expected date of placement and can start on any day of the week. If the placement ends during the adoption leave period, a further eight weeks leave may be taken from the end of the placement. Employees will have to give their employer documentary evidence (a matching certificate) from their adoption agency as evidence of their entitlement to statutory adoption pay. Adopters who intend to return to work at the end of their full adoption leave entitlement will not need to give any further notification. However, if they wish to return earlier, they must give eight weeks notice of the date of return. The employers of teachers covered by the Burgundy Book provisions have discretion to extend to adoptive parents the relevant postnatal sections of the maternity scheme. It is important to check your contract and any local agreement that may be in place to be sure of your entitlement as this might improve the statutory provisions. Paternity leave and pay Statutory paternity leave is available for an employee who: has a newborn or adopted child; has responsibility for the upbringing of the child; is the father of the child or is married to or the partner of the childs mother; has been continuously employed for at least 26 weeks ending with the 15th week before the expected week of childbirth or matching certificate.

14

Statutory Paternity Pay is available for either one or two consecutive weeks and cannot be for odd days. From 6 April 2009 this will be paid at the rate of 123.06 a week. The leave has to be taken within 56 days of the date on which the child is born or placed with the employee for adoption. If the child is born early, the leave must be taken within 56 days of the EWC. An employee is required to inform their employer of their intention to take paternity leave by the 15th week before the EWC, unless this is not reasonably practicable. The notification needs to include the EWC, whether one or two weeks is required and when they wish the leave to start. The date can later be changed providing 28 days notice is given. A self-certificate form should be completed, which will also include a declaration that the eligibility conditions have been met. Most employers will already offer some paid paternity leave and whichever provision is the most advantageous can be used. Parental leave Parental leave is an additional right, and can be taken immediately following maternity, adoption or paternity leave if you have one years continuous service by the date on which you intend to take the leave. Thirteen weeks UNPAID leave can be taken up to the childs 5th birthday, or 18th birthday if the child is disabled. If the child qualifies for disability living allowance, the parent is entitled to 18 weeks unpaid parental leave. Normally no more than four weeks can be taken in any one year and at least three weeks notice needs to be given to the employer. Unless there is an agreement with the employer to the contrary, the following provisions will apply: leave must be taken in blocks or multiples of one week except for parents of disabled children who can take leave in blocks or multiples of one day; a maximum of four weeks parental leave can be taken in one year in respect of each child; 21 days notice of the commencement of leave must be given; unless the parental leave immediately follows birth or adoption, the employer can postpone the leave for up to six months if the school considered they would be particularly disrupted if the leave were to be taken at the time requested. Time off for family and domestic reasons All employees have a legal right to take a reasonable amount of unpaid time off to deal with an emergency involving a dependant. There may be local agreements regarding paid time off in these circumstances.

15

FUTURE IMPROVEMENTS
The Government has indicated that it is their intention that the following provisions will come into force before the end of the current Parliament, April 2009 or April 2010. Statutory maternity and adoption pay The Government intends to increase statutory maternity and adoption pay from 39 to 52 weeks. Additional paternity leave and pay Additional paternity leave and pay will be introduced in addition to the two weeks ordinary paternity leave that can now be taken. Additional paternity leave of up to 26 weeks before the childs first birthday will be available if the mother/parent has returned to work before the end of the full maternity or adoption leave.

16

APPENDIX 1
Glossary of terms SMP MA SPP SAP EWC Burgundy Book Childbirth Statutory Maternity Pay (the figures given are those applicable at April 2009). Maternity Allowance. Statutory Paternity Pay. Statutory Adoption Pay. Expected Week of Childbirth. Conditions of Service for School Teachers in England and Wales. The birth of a living child, or the birth of a child whether living or dead after 24 weeks of pregnancy. First 26 weeks of leave. 26-week period immediately following ordinary maternity leave.

Ordinary Maternity Leave Additional Maternity Leave

17

APPENDIX 2
Eligibility for occupational and statutory maternity pay SMP Occupational scheme (Burgundy Book) All continuous service with one or more local authority schools. However, with foundation schools there is only automatic continuous service if the move is between the local authority and a foundation school in the same local authority.

Qualifying employment

Only continuous service with current and associated employer (i.e. schools in same local authority).

Service qualification

26 continuous weeks of employment ending with the qualifying week, the 15th week before the EWC. Six weeks 90% pay, 33 weeks SMP (123.06 a week) 13 weeks unpaid leave.

One years continuous service at the beginning of the 11th week before the EWC.

Amount of pay

Four weeks full pay, two weeks 90% pay, 12 weeks half pay (plus SMP), 21 weeks SMP, 13 weeks unpaid leave. 12 weeks half pay.

Payments repayable on failure to return to work for 13 weeks. If working full time before the leave and return part-time, the equivalent of 13 full-time weeks are required.

Not applicable.

18

SMP Notification requirements Notify employer by 15th week before EWC: 1. that you are pregnant; 2. EWC; 3. when you expect to start your leave (this date can be changed providing you give at least 28 days notice). Within 28 days your employer will write to you setting out the date on which you are expected to return if you take your full entitlement.

Occupational scheme (Burgundy Book) Notify employer in writing no later than 14 weeks before the EWC that you will be absent due to pregnancy, give your EWC and produce a certificate (Mat B1), if requested. Inform your employer of the date you wish to start your leave but this date can be changed if you give 28 days notice.

19

APPENDIX 3
Maternity leave and pay flowchart Do you teach in a local authority school?
No You will need to check your contract for entitlement to Occupational Maternity Pay.

Yes

Have you been in continuous local authority employment for at least one year by 11 weeks before EWC?

Yes Have you been with your current employer for 26 weeks by the 15th week before EWC? Yes 90% pay for six weeks, 33 weeks @123.06 and 13 weeks unpaid leave (FINISH Read notes 1 and 2 below.) Yes Yes No No Have you been employed for 26 weeks in the 66 weeks up to EWC?

20

Four weeks full pay, two weeks 90% pay, 12 weeks half pay + SMP @ 123.06 a week, 21 weeks SMP @ 123.06 a week. Additional leave of a further 13 weeks (unpaid).

Notify employer in writing 15 weeks before EWC (FINISH Read notes 1-3 below.)

1.

2.

39 weeks Maternity Allowance @ 123.06 and 13 weeks unpaid maternity leave. (FINISH Read notes 1 and 2 below.)

Entitlement to 52 weeks unpaid maternity leave.

3.

You can choose when you want to start maternity leave, which can be taken any time between 11 weeks before EWC and the EWC. You also choose when you want to return to work, giving your employer the correct notice if it is earlier than the end of your full entitlement. You have to return to work for 13 weeks or repay the 12 weeks half pay your employer paid you. If you change to part time, you have to work equivalent to 13 weeks full-time work.

NASUWT
The Teachers Union

Hillscourt Education Centre, Rose Hill, Rednal, Birmingham B45 8RS Tel: 0121 453 6150 Fax: 0121 457 6208 E-mail: nasuwt@mail.nasuwt.org.uk Website: www.nasuwt.org.uk

Paternity Paternity Adoption Adoption

09/05049

Maternity Maternity

The largest teachers union in the UK