New rights to maternity and parental leave in the UK were introduced by the Employment Relations Act 1999. Only months after bringing in these changes, the government is engaging in consultation on fundamental reform of the new system in the form of a Green Paper entitled "Work and Parents: competitiveness and choice". This article sets out the corresponding provisions in Belgium employment law and summarises the differences and similarities.
Maternity leave
A pregnant employee is entitled to 15 weeks maternity leave. The maternity leave is divided into two periods: ante-natal (normally 7 weeks) and post-natal (8 weeks).
Ante-natal
Ante-natal leave is 7 weeks long. The leave starts no earlier than 7 weeks preceding the expected date of confinement.
As from the 7th day prior to the expected date of confinement, the employee must cease all activity and the employer is not permitted to require her to work at this time (compulsory ante-natal leave). The employee can choose whether or not to take all part of the 6 weeks ante-natal maternity leave remaining. It may be totally or partially postponed and be added to the end of the post-natal maternity leave, provided the employee kept working from the 7th week preceding the actual date of birth. So, for example, the employee works until the compulsory ante-natal leave and takes up 14 weeks leave after the birth (6 weeks ante-natal leave remaining and 8 weeks post-natal leave).
Post-natal
Post-natal leave is 8 weeks starting from the day of birth but can be extended by any ante-natal maternity leave remaining.
Comparison with UK
There is 18 weeks 'ordinary maternity leave' (OML). The law provides a compulsory maternity leave period as part of this but of 2 weeks which must immediately follow the baby's birth.
The law also provides 'additional maternity leave' (AML) which entitles employees with the necessary qualifying condition to take up to a maximum of 40 weeks' leave in total. This period can start 11 weeks before childbirth but must end after 29 weeks (beginning with the week of childbirth).
Contract
It should be stressed that maternity leave only suspends the employment contract and the employee is entitled to resume work on the same terms and conditions at the end of her maternity leave (identical to the right to return from OML in UK statutory rights). So, under Belgian employment law, an employer cannot offer a suitable alternative job as can be the case in the UK for a woman who returns from additional maternity leave.
Protection against dismissal
Provided the employee can prove that she informed her employer of her pregnancy, she is protected against dismissal from the date her employer becomes aware of her pregnancy, up to one month after the end of her post-natal maternity leave. During the period of protection, the employer is not entitled to terminate the employment contract except for grounds unrelated to the pregnancy (ETO or grounds relating to the conduct of the employee). If the employer illegally dismisses the employee, it must pay an amount equivalent to 6 months' remuneration to the employee in addition to any notice period or payment in lieu of notice.
Comparison with UK
Women who are dismissed for reasons connected with pregnancy or maternity leave are given special protection from dismissal. Such protection entitles the employee to claim automatically unfair dismissal. Both protections are, therefore, fairly similar except compensation in Belgium is more easily assessable than in UK where compensation will primarily depend on the woman's actual loss suffered.
Maternity benefits
A maternity 'indemnity' is paid to the employee during her maternity leave through a statutory insurance scheme. The (gross) remuneration is, however, capped at 98.703 BEF - GBP 1464. During the first month, a woman is entitled to 82 percent of her remuneration. From the 31st day, she is entitled to 75 percent of her remuneration until the end of her maternity leave. Therefore an employer has no direct financial obligation but can, at his discretion, top up such maternity allowances to ensure the same level of remuneration during the maternity leave.
Comparison with UK
In the UK an employee is entitled to receive 18 weeks statutory maternity pay from her employer (unlike in Belgium where a statutory insurance scheme intervenes). For the first 6 weeks, she is entitled to 90 percent of her remuneration, uncapped. For the remaining 12 weeks, the SMP rate falls to (currently) GBP 60.20 per week. The part of any maternity leave which exceeds 18 weeks is unpaid unless the employer decides otherwise.
In most cases, the employer can be reimbursed up to 92 percent of the paid SMP.
Conclusion
The UK statutory rights may seem prima facie more favourable as many employees may take up to 40 weeks maternity leave whereas all Belgian employees are limited to a maximum of 15 weeks. Nevertheless, UK employees are often disadvantaged by the lower rate of SMP starting from the 7th week of leave.
Parental leave
Genuine parental leave
Qualifying employees - length of the leave
All employees who have completed 12 months of qualifying service within the 15 months prior to the request for parental leave are entitled to 3 months' unpaid leave (13 weeks) to look after their biological or adopted child. The leave lasts until the child's 4th birthday for a biological child. For an adopted child, the right to parental leave applies for up to 4 years from the adoption and until the child's 8th birthday. The employer and the employee may, alternatively, agree on a reduced hours parental leave, for example, 6 months part-time leave. This requires a written part time contract. More flexibility is available if the parties can agree to divide the leave into two or more periods, each separated by periods of work.
Comparison with UK
The statutory fall-back parental leave scheme applies to parents with one year's continuous service and to children born on or after 15 December 1999. The leave lasts until the child's fifth birthday. The length of the leave is identical (13 weeks for each qualifying child). However, the employee is only entitled to 4 weeks leave per year and leave can only be taken in blocks or multiples of one week.
Protection against dismissal
An employee who exercises his/her rights to parental leave is protected from dismissal. The protection starts from the written notice of intention to take parental leave and ends 2 months after completion of the leave. Where the leave is split, the protection ends 9 months after its starting date.
During the period of protection, the employer is not entitled to terminate the employment contract except for 'serious cause' (e.g. gross misconduct) or a recognised reason (i.e. one held to be acceptable by a tribunal and not related to the exercise of the right of parental leave (ETO)). If the employer does not respect this period of protection, it must pay the employee an amount equivalent to 6 months remuneration.
Comparison with UK
To dismiss an employee because he/she takes parental leave is automatically unfair.
Resuming work
At the end of the leave, the employee is entitled to return to the same job or a suitable and appropriate job if the previous one is not now available, with comparable terms and conditions.
Comparison with UK
The fall-back scheme is identical except that where leave is four weeks or less, the employee is entitled to go back to the same job.
Parental leave within a career break
General principle
A career break allows an employee to stop his professional activity for whatever reason during a definite period of time and with the right to return to work thereafter. During the break, the employee is entitled to some payment.
As from 1 January 1998, an employee may exercise his/her rights to parental leave within a career break. The leave becomes (partially) paid and the employer must replace the employee with a job-seeker for the period of leave. 3 percent of employees have the right to a career break at any one time (e.g. 3 in a 100 employees).
Length of the leave
The employee is entitled to exercise his/her right on a 3 month basis (suspending the employment contract), or on a 6 month basis working part-time.
Remuneration
The employee will receive a career break allowance of 20.400 BEF - GBP 304 - per month (10.200 BEF - GBP 152 if half-time reduction).
Resuming work
Protection against dismissal is similar to ordinary parental leave, and at the end of the leave period the employee is entitled to return to the same job with the same terms and conditions.
Conclusion
An informed employee would opt for parental leave within the frame of a career-break to be entitled to at least some payment. A woman may decide to start her parental leave immediately after the end of her maternity leave which provides a fairly long break after the birth and offers a good balance between work and family. In such situations, the Belgian parental leave (within a career break) is more generous than what currently exists now in the UK. The results of the Green Paper may close the gap between both countries.
For further information, please contact Loic Peltzer by e-mail at loic.peltzer@cms-cmck.com or by telephone on +44 (0)20 7367 3611.
