Law: A pregnant pause on the wards

Hang on in there! Babies born after midnight tonight win their parents 13 weeks' leave.
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The Independent Culture
Instead of the usual stream of obscenities emanating from the nation's maternity wards, come this evening, the shouts may well be rather different. Tonight, the cry from clued-up mothers-to-be embarking on labour may well be a heart-felt: "Hold on! Not yet!"

As the clock ticks round towards midnight, one contraction too many could make all the difference to entitlement to parental leave or not.

Parents whose child who is born, or adopted, on or after 15 December will qualify for the new right to parental leave. Under the new rules, they will be able to take 13 weeks' unpaid leave at any time during the child's first five years.

Emma Thompson and Greg Wise have just missed the boat, since the arrival of "baby jane.com" last weekend came too soon to allow her to benefit from the new rules. However, our first lady, Cherie Blair, would more than qualify since her baby is not due until Spring next year.

It would of course be churlish to suggest that the Blairs had the inside track on the implementation dates for the new rules, especially since this particular example of new labour was unplanned.

However, as an actress and a barrister respectively, Emma and Cherie are both self-employed. Since the rules only benefit parents who are or become employees, they might consider the new regime irrelevant. But if Cherie were to be smiled upon by the Lord Chancellor's department and became a full-time judge, she would be eligible for parental leave.

The regulations which give chapter and verse have only recently been published. In addition to the key date of 15 December, an employee will need to have worked for his or her employer for a year before becoming eligible for leave. Subject to that, the Government has announced that it intends to allow employers and employees a certain amount of freedom to agree how to implement and exercise the new rights.

But in the event of inertia or a lack of agreement, the Government has provided a "fall-back" scheme.

This scheme sets a cap on the amount of leave that can be taken in each year (four weeks for each child) and it restricts the minimum amount of leave that can be taken in any one go to one week (so no regular Monday mornings off then - unless the employer and employee agree otherwise). The employee will have to give 21 days' advance notice before he or she can take time off, and the employer has the right to postpone a request for parental leave for up to six months in certain circumstances. However, this right of postponement does not apply if the parent wishes to take leave at the actual time of the birth/adoption. A more generous and flexible regime will apply to the parents of a disabled child where, for example, parental leave can be taken at any time up to the child's 18th birthday.

Parental leave is available to either parent and is, therefore, additional to maternity leave for the mother. If she passes the qualifying threshold, which is itself going to be reduced to one year, the mother can already take up to 29 weeks off immediately after the birth. Now she can add a further 13 weeks to this if the employer is in agreement to all of the parental leave being taken in one block.

If there is a new breed of career woman opting for "designer caesareans", anyone booked in today will no doubt be kicking herself and wondering whether she can reschedule. One can imagine a short-term but active trading market where options on caesarean appointments could be sold to the highest bidder!

Tony Rutherford, a consultant obstetrician and gynaecologist at Leeds General Infirmary, specialises in complex obstetrics and so performs a number of elective caesareans. He himself has not as yet been asked to move any caesarean appointments but he wonders whether this is because people are not aware of the relevance of the date. He says that provided there was no threat to the mother's or baby's well-being, he would be happy to move an appointment back by a couple of days to accommodate "parental leave" concerns.

Since parental leave is expressed as 13 weeks per child, rather than per pregnancy, consider the situation in the case of triplets; both parents will get the right to 39 weeks off. In this age of fertility treatments, multiple births are becoming more common. If Mandy Allwood had given birth to all of her eight babies, she could have had 104 weeks, ie two years, off. Even without multiple births, the age gap between children is often around the two-to-three- year mark. So, if a family has two young children, while they are both under five, the parents get a double helping of parental leave.

In order to relax some of the administrative burdens, the Government has indicated that employers will not have to keep formal statutory records of the amount of parental leave each employee has taken. This is not much of a concession since most employers would want to keep track of how much leave each employee uses.

Problems may also arise for future employers. An employee could exhaust all of his or her parental leave with one employer, then try to take further leave in a new job. Since there is no obligation on a former employer to provide even a reference, the new employer will have no right to find out whether the employee's leave entitlement has been used up. The former employer will probably feel so paranoid about the strictures of the Data Protection Act that he or she will be worried about revealing such information anyway.

Since the entitlement to leave is unpaid, it may well be that the impact of the new rules will not be as great as employers might fear. Ed and Claire Gelsthorpe are proud first-time parents but their daughter Josephine just missed the December dateline. Even so, Ed's company was happy to let him take a couple of paid days off at the time of the birth. Echoing a view expressed by many new dads, Ed, who works as a solicitor, confides: "I also took five days of my holiday entitlement to be at home with Claire and Josie but to be honest, it was a relief to come back to work!"

Ed didn't think that missing out on unpaid parental leave was much of a loss, although the right to the odd unpaid day here and there might have been useful.

The right to parental leave is part of the Government's introduction of new family-friendly policies. At the very least, there is some comfort for all of those people who were aiming for Millennium babies. If they miss their target by a few days either side, they will still have timed it well enough to benefit from the new parental-leave rules.

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