It is common practice to refer to any time off that a woman takes after the birth of her child as “maternity leave”. However, in a legal sense maternity leave refers to 3 statutorily defined periods: Ordinary Maternity Leave (OML) of 26 weeks; Additional Maternity Leave (AML) of a further 26 weeks following OML; and Compulsory Maternity Leave of 2 weeks immediately following the birth of the child. Each of these types of leave has specific rights attached to them, including the right of the woman to return to work following the period of leave.
However, as defined in the legislation these periods of maternity leave are only applicable to employees operating under a contract of employment and do not apply to temporary workers engaged on a contract for services. This means that whilst a temporary worker is entitled to make herself unavailable for work following the birth of her child, this would not be the same as taking OML or AML and would mean that the associated rights of these would not be applicable, including the right to return to the same role after OML or to return to a role on terms and conditions that are no less favourable after AML. It is important to note that whilst the maternity leave rights are not applicable to temporary workers engaged on a contract for services, they may still be eligible for Statutory Maternity Pay as this has its own qualification criteria. It is also important to recognise that employed agency workers such as those on a zero hour or Swedish Derogation contract are employees and would, therefore, be entitled to maternity leave and the associated rights thereof.
Whilst Compulsory Maternity Leave is also an employee only right, there is a requirement that the health and safety of temporary workers is safeguarded. This means that Employment Businesses supplying temps should have provisions in place to restrict temporary workers from working for the equivalent period of Compulsory Maternity Leave (the first two weeks following the birth of the child).
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This article was posted by Patrick Milnes, Legal Adviser, REC