Employment Update, UK - September 2008

01 September 2008

Jenny Brentle, Jonathan Goldsworthy


Changes to Additional Maternity and Additional Adoption Leave Rules


Legislation previously drew a distinction between ordinary maternity/adoption leave (up to 26 weeks) and additional maternity/adoption leave (26-52 weeks). During ordinary maternity/adoption leave and employee had a statutory right to benefit from all terms and conditions which would have applied to her had she been at work, except those relating to remuneration (i.e. salary). During additional maternity/adoption leave it was lawful for an employer to stop most of those terms and conditions. As a result, it has previously been common for benefits such as Private Medical Cover, Car Allowance and Gym Membership to continue through the ordinary maternity or adoption leave periods, but to be suspended during additional maternity or adoption leave.

New Legislation

Employees who are due to give birth or adopt on or after 5 October 2008 will have the right to enjoy the same terms and conditions during additional maternity/adoption leave as they have during ordinary maternity/adoption leave.

Effect on Employers

Employers should carefully review their maternity and adoption policies and practice to ensure that benefits are retained throughout the entire period of an employee's maternity or adoption leave. For the avoidance of doubt, there is still no requirement to provide any remuneration throughout the maternity or adoption leave periods.

Effect on Pensions

Unfortunately, there is now some uncertainty about whether pensions benefits are included in the benefits which must be continued during maternity or adoption leave since pensions are being treated differently from other types of benefit. For the time being the position under the new legislation is that pension benefits must continue during ordinary maternity and adoption leave, whether or not the employee receives any remuneration from the employer during this time. However, pension benefits must only be continued during additional maternity and adoption leave where the employee receives remuneration for that period. Employers should be aware, however, that the government could be open to challenge on this point and that in the future legislation may have to be further amended to ensure consistent treatment on pensions throughout the entire period of any maternity or adoption leave.

(Sex Discrimination Act 1975 (Amendment) Regulations 2008 and the Maternity and Parental Leave etc and the Paternity and Adoption Leave (Amendment) Regulations 2008)

Minimum Wage

New legislation

As of 1 October 2008, the hourly rates for the national minimum wage will increase as follows:

Workers aged 22 and over - £5.73
Workers aged 18-21 - £4.77
Workers aged 16 & 17 - £3.53

Immigration Checking and TUPE


As set out in our previous newsletter, on 29 February 2008, new checking requirements were introduced for employers who wish to employ migrant workers. A new system of penalties was also introduced for employers which hire individuals that do not have permission to work in the UK.

New Legislation

As part of these changes, the UK Border Agency (“UKBA”) has also changed its approach to the document-checking obligations which a transferee is required to make following a relevant transfer under the Transfer of Undertakings (Protection of Employment) Regulations 2006 (“TUPE”). Previously, the transferee could rely on any checks carried out by the transferor and so did not have to carry out any checks on the transferred employees. However, the UKBA guidance on the new regime states that transferees now only have a “grace period” of 28 days after the transfer in which to carry out the checks for themselves.

Effect on Employers

Unfortunately, it is not clear whether the transferee should carry out checks that applied at the time that each individual was first employed (checking requirements have continued to evolve since their introduction under the Asylum & Immigration Act 1996) or those applied at the time of the transfer (i.e. the current regime). In the interests of safety, transferees would be advised to make checks under the current regime.

Furthermore, Regulation 4(2)(b) of TUPE 2006 provides that “any act or omission before the transfer is completed, of or in relation to the transferor …, shall be deemed to have been an act or omission of or in relation to the transferee”. It is therefore arguable that checks carried out by the transferor are deemed to have been carried out by the transferee and, as such, it should not be necessary to carry out any further checks.

The UKBA has confirmed that the guidance is currently not sufficiently detailed and that transferees do not need to make individual document checks as long as they can show that the employees had transferred under TUPE. The UKBA has not, however, made any changes to the guidance and in the meantime, transferees would still be advised to carry out their own checks in order to be able to rely on the statutory defence and ensure that they deal with any employees who do not have permission to work in the UK appropriately. This approach will also link in with requirements under the Government’s new Points-Based Immigration System.