Don't wait for 2014 to introduce a parental leave policy, employment lawyer warns Jersey employers

A recent report into gender equality in Jersey says the States should bring forward legislation on maternity and flexible working as a matter of priority.

In doing so, The Jersey Community Relations Trust says, the States should recognise that childcare is a shared parental responsibility and the rights and obligations of both parents to care for their children needs to be included in this legislation.

In response, Jersey's social security minister, Senator Francis Le Gresley, has pledged to create a maternity law before he leaves office - by 2014.

Currently, there is no legal provision for maternity leave but new mothers can be signed off work for two weeks. Senator Le Gresley's proposal is to give mothers in Jersey two weeks leave on full pay and up to 16 additional weeks unpaid leave depending on how long they have been in their job.

However, 2014 is still a long way off and even if these proposals are introduced, they are significantly less than all other jurisdictions that have maternity laws.

While we continue to wait for Jersey’s draft law, any Jersey employers who do not have a parental leave policy already in place should still consider implementing one before the draft law appears and is enacted.

By doing more for pregnant employees than they are legally required to, this would help to show that they are reasonable employers, should a dispute between employer and employee arise.

If these proposals were implemented then parents in Jersey would be on a par with those in Guernsey, where February 2012 saw States approved maternity leave that will come into force in January 2014.

However, even then, parents in the Channel Islands would still have far fewer entitlements than if they were in the UK and much of Europe. The main reason for this is that larger jurisdictions have had some form of such rights in place for many years and these have been extended over time.

So what is causing the hold up? Because the proposed statutory provisions cannot be regarded as more than the minimum, it is considered futile to introduce rights that will only need extending as soon as the law has been enacted. This is what has stalled the process.

Despite there being no law in place yet, Island employers of all sizes would be wise to consider having at least a policy on maternity leave in place now. Many large companies already have policies covering maternity and paternity, so small and medium sized organisations will find it hardest to adapt to the introduction of these statutory rights.

In practice, they already have to deal with female employees falling pregnant on a case-by-case basis, which creates the potential for a dispute to arise.

Where does an employer start with a new parental leave policy?

To be able to plan sufficiently for the forthcoming absence, the employer must ask the expectant mother: the expected date of birth, the date when the employee wishes to cease working, whether they intend to return to work following the birth and, if so, the date when they would like to return to work. Asking her to complete a form with these details on at, say, the 5th month of the pregnancy would seem to be the most practical. If she is asked much earlier it is likely that her views may change by the birth.

The employer then needs to consider what steps it needs to take to ensure that it can continue to provide the same level of service, or that adequate cover will be in place to do the work of the employee, while she is away. This may mean asking other employees to do her work on a temporary basis, to work extra hours or possibly to take on another employee on a temporary basis.

What if the baby arrives early?

The employer needs to implement the plans it has made to cover the employee’s work with immediate effect.

What if the baby arrives late?

If the employee wishes to work to a date later than she indicated then, provided there are no health issues, there is no reason why the employer should not agree. They may need to undertake a risk assessment of her job which gives specific consideration to her pregnancy.

When should paternity leave commence?

Employers should give some flexibility in the wording for the start date in their paternity policy. Many policies say that paternity leave will start on the day that the baby is born but in reality, this is not always the best time for the father to take the leave, for example if the arrival is earlier than expected or if there is a long labour, which may mean they need to use some of their leave before the baby is actually born. Often fathers would prefer to defer time off either until mother and baby are out of hospital, or until a later date when they would be more useful at home. If it makes no actual difference to the employer when the father takes his [x] days off, there is no reason for the policy to be so rigid in its application.

The policy might say, for example, “if the leave is not to be taken from when the baby is born, then the timing of such to be agreed with the employer but to be taken in any event within 3 months of the birth”.

What if there are complications prior to, or following, the birth ?

If complications occur, the mother (and father) may need to take annual leave at short notice or extended unpaid leave. And if child care arrangements, due to start when the leave ended, do not work out, further absence may be needed. Employers may wish to make provision for such circumstances when drafting a maternity or paternity policy for the first time.

If the law on parental leave includes the right to request flexible working, this would cover such a situation.

Does holiday leave entitlement continue to accrue during maternity leave?

This is unclear from the draft proposals for maternity leave provisions. One might assume that it does accrue in the same way as during any period of sickness absence, but there is no requirement and it is therefore entirely at the employer’s discretion. If holiday entitlement is not to accrue during the period of leave, it is worth specifically stating this so that there is no misunderstanding.

More information

Colette Hunt
T: +44 (0)1534 601734
E: colette.hunt@collascrill.com

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