Employment Rights Act 1996, section 71

Part VIII

(1)An employee may, provided that she satisfies any conditions which may be prescribed, be absent from work at any time during an ordinary maternity leave period.

(2)An ordinary maternity leave period is a period calculated in accordance with regulations made by the Secretary of State.

[F442 (3)Regulations under subsection (2)—

(a)shall secure that, where an employee has a right to leave under this section, she is entitled to an ordinary maternity leave period of at least 26 weeks;

(b)may allow an employee to choose, subject to prescribed restrictions, the date on which an ordinary maternity leave period starts;

[F443 (ba)may allow an employee to bring forward the date on which an ordinary maternity leave period ends, subject to prescribed restrictions and subject to satisfying prescribed conditions;

(bb)may allow an employee in prescribed circumstances to revoke, or to be treated as revoking, the bringing forward of that date;F443]

(c)may specify circumstances in which an employee may work for her employer during an ordinary maternity leave period without bringing the period to an end.F442]

[F444 (3A)Provision under subsection (3)(ba) is to secure that an employee may bring forward the date on which an ordinary maternity leave period ends only if the employee or another person has taken, or is taking, prescribed steps as regards leave under section 75E or statutory shared parental pay in respect of the child.F444]

(4)Subject to section 74, an employee who exercises her right under subsection (1)—

(a)is entitled [F445 , for such purposes and to such extent as may be prescribed,F445] to the benefit of the terms and conditions of employment which would have applied if she had not been absent,

(b)is bound [F446 , for such purposes and to such extent as may be prescribedF446] by any obligations arising under those terms and conditions (except in so far as they are inconsistent with subsection (1)), and

[F447 (c)is entitled to return from leave to a job of a prescribed kind.F447]

(5) In subsection (4)(a) “terms and conditions of employment”—

(a)includes matters connected with an employee’s employment whether or not they arise under her contract of employment, but

(b)does not include terms and conditions about remuneration.

(6)The Secretary of State may make regulations specifying matters which are, or are not, to be treated as remuneration for the purposes of this section.

[F448 (7)The Secretary of State may make regulations making provision, in relation to the right to return under subsection (4)(c) above, about—

(a)seniority, pension rights and similar rights;

(b)terms and conditions of employment on return.F448]

Definitions used in section 71 6

employee

(1) In this Act “employee” means an individual who has entered into or works under (or, where the employment has ceased, worked under) a contract of employment.

Defined in s.230(1) · see it in the full Act
week

“week”—

(a)

in Chapter I of this Part means a week ending with Saturday, and

(b)

otherwise, except in sections 27C, 75F, 75H, 80A, 80B , 80EA , 80EF , 80J and 86 and paragraph 11 of Schedule A1 , means, in relation to an employee whose remuneration is calculated weekly by a week ending with a day other than Saturday, a week ending with that other day and, in relation to any other employee, a week ending with Saturday.

Defined in s.235(1) · see it in the full Act
employer

(4) In this Act “employer”, in relation to an employee or a worker, means the person by whom the employee or worker is (or, where the employment has ceased, was) employed.

Defined in s.230(4) · see it in the full Act

(6) This section has effect subject to sections 43K , 47B(3) and 49B(10) ; and for the purposes of Part XIII so far as relating to Part IVA or section 47B, “worker”, “worker’s contract” and, in relation to a worker, “employer”, “employment” and “employed” have the extended meaning given by section 43K.

Defined in s.230(6) · see it in the full Act
job

“job”, in relation to an employee, means the nature of the work which he is employed to do in accordance with his contract and the capacity and place in which he is so employed,

Defined in s.235(1) · see it in the full Act
employment

(5) In this Act “employment”—

(a)in relation to an employee, means (except for the purposes of section 171) employment under a contract of employment, and

(b)in relation to a worker, means employment under his contract;

Defined in s.230(5) · see it in the full Act

(6) This section has effect subject to sections 43K , 47B(3) and 49B(10) ; and for the purposes of Part XIII so far as relating to Part IVA or section 47B, “worker”, “worker’s contract” and, in relation to a worker, “employer”, “employment” and “employed” have the extended meaning given by section 43K.

Defined in s.230(6) · see it in the full Act
contract of employment

(2) In this Act “contract of employment” means a contract of service or apprenticeship, whether express or implied, and (if it is express) whether oral or in writing.

Defined in s.230(2) · see it in the full Act

Cases considering section 71 7

Ali v Capita Customer Management Ltd (Rev 2)

[2019] EWCA Civ 900 · 24 May 2019

Section 71 was treated as implementing the entitlement to ordinary maternity leave. The Court used that statutory framework in assessing the character of maternity leave after childbirth. (see paras [6]; [47]-[48])

Peninsula Business Services Ltd v Donaldson

[2016] UKEAT 249_15_903 · 9 March 2016Interprets

Section 71(4) confers the prescribed right during maternity leave to employment terms and conditions, subject to the exclusion for remuneration. Regulation 9 was construed against that statutory distinction (see paras [25]-[27]). Section 71(5) defines employment terms and conditions for maternity-leave purposes while excluding terms about remuneration. The court applied that distinction in holding that the salary-diverted vouchers were remuneration (see paras [25]-[27]; [37]-[40]). Cited as the statutory power to specify by regulations what is or is not remuneration for the maternity-leave entitlement (see paras [25]-[26]).

Mizan Mahder Weldemichael v The Secretary of State for the Home Department

[2015] UKUT 540 (IAC) · 14 September 2015

The Tribunal relied on the 26-week ordinary maternity leave period, together with additional maternity leave, in adopting a 52-week maximum for the protected period. (see paras [31]; [43]-[50])

1 more judgment, and what each says about section 71, are in the case-law panel in the full Act.

Amendments and notes

10 notes from legislation.gov.uk

Amendments

  1. F442S. 71(3) substituted (27.6.2006 for certain purposes, otherwise 1.10.2006) by Work and Families Act 2006 (c. 18), ss. 11, 19, Sch. 1 para. 31; S.I. 2006/1682, art. 2(c), 3(c)(d)
  2. F443S. 71(3)(ba)(bb) inserted (30.6.2014) by Children and Families Act 2014 (c. 6), ss. 118(2)(a), 139(6); S.I. 2014/1640, art. 3(1)(b)
  3. F444S. 71(3A) inserted (30.6.2014) by Children and Families Act 2014 (c. 6), ss. 118(2)(b), 139(6); S.I. 2014/1640, art. 3(1)(b)
  4. F445Words in s. 71(4)(a) inserted (24.11.2002) by Employment Act 2002 (c. 22), s. 17(2)(a); S.I. 2002/2866, arts. 2(1), 3, Sch. 1 Pt. 1 (with Sch. 3 para. 3)
  5. F446Words in s. 71(4)(b) inserted (24.11.2002) by Employment Act 2002 (c. 22), s. 17(2)(b); S.I. 2002/2866, arts. 2(1), 3, Sch. 1 Pt. 1 (with Sch. 3 para. 3)
  6. F447S. 71(4)(c) substituted (24.11.2002) by Employment Act 2002 (c. 22), s. 17(2)(c); S.I. 2002/2866, arts. 2(1), 3, Sch. 1 Pt. 1 (with Sch. 3 para. 3)
  7. F448S. 71(7) substituted (24.11.2002) by Employment Act 2002 (c. 22), s. 17(3); S.I. 2002/2866, arts. 2(1), 3, Sch. 1 Pt. 1 (with Sch. 3 para. 3)

Modifications

  1. C73S. 71 restricted (15.12.1999) by S.I. 1999/3312, reg. 9
  2. C74S. 71 modified (E.) (1.9.2003) by The Education (Modification of Enactments Relating to Employment) (England) Order 2003 (S.I. 2003/1964), art. 3, Sch.
  3. C75Ss. 70, 71 modified (W.) (12.5.2006) by The Education (Modification of Enactments Relating to Employment) (Wales) Order 2006 (S.I. 2006/1073), arts. 1(1), 3, {Sch. }