The later they come, the richer they are: Andrew Bibby untangles the complexities of Brussels' maternity directive

PREDICTING the date when a baby will arrive is, as any woman who has had one knows, an extremely inexact aspect of medical science. However, this autumn more than usual hinges on the date.

Women with babies expected on or after 16 October will be able to benefit from new maternity rights. Women who have been given an estimated date for the birth on or before 15 October may find that this has cost them both maternity pay and maternity leave - and they will continue to miss out, even if their baby arrives after the 16 October threshold.

Whether many consultants are aware of this seems unlikely. 'I've personally talked to a woman who was told her baby was due on 15 October - I told her to go back and check,' says Jenny Earle, legal officer for Maternity Alliance. 'Women who are just a few days out could miss not only hundreds of pounds but also important employment protection against dismissal.'

The changes are the result of European Commission directives. All women employees in future have a right to 14 weeks' maternity leave, regardless of how long they have worked for an employer. This leave is not necessarily paid, however, as the rules for statutory maternity pay (SMP) apply only to women who have worked for at least six months in the same job and earn at least pounds 57 a week. Under the new provisions, anyone qualifying (the six months' rule is applied at the fifteenth week before the estimated week of birth) is entitled to six weeks' SMP at 90 per cent of salary and a flat pounds 52.50 for 12 weeks thereafter. Up to now, women have had to meet a two-year service requirement (five years for part-timers) before qualifying for the six weeks of higher SMP.

Jenny Earle is critical of the limited extent of the reforms. 'Horse- trading in Europe, led by Britain prevented the minimum rights being 16 weeks' fully-paid maternity leave - that would have been brilliant,' she says. She also points to the scope for confusion between the 14 weeks' statutory maternity leave and 18 weeks of maternity pay. 'It's crazy - a lot of people assume that the 14 weeks in the literature must be a mistake. Good employers will extend maternity leave to 18 weeks, but many women may have to forfeit the last four weeks of their SMP to protect their jobs,' Ms Earle says. The existing legal right to an extended period of unpaid maternity leave (for up to 29 weeks after the week of birth) continues for women who have worked for an employer for two years full-time or five years part-time.

Ironically, the new rules may still fall foul of sex discrimination legislation, if a tribunal is convinced that an employer would have granted more than 14 weeks' leave, say, to a male employee with a broken leg. 'We're advising women who can't manage to return within 14 weeks to seek to negotiate an extended period of leave. If they can't get this, they may be successful in a tribunal,' Jenny Earle says.

Excluded from the new SMP rights are working women with weekly pay below the current pounds 57 National Insurance threshold. Self- employed and unemployed women (and employed women in new jobs) may qualify for maternity allowance instead of SMP, but only if their National Insurance contributions record is adequate.

The Government has also moved to implement another EC directive that should help to protect women's pension rights, and associated benefits such as life insurance, during maternity breaks. The measure, supposed to be in force in January 1993, was eventually slipped into law on 23 June this year. It obliges employers with occupational pension schemes to maintain the full pension rights of women taking paid maternity leave.

What this means for a woman in a final salary pension scheme is that her eventual pension should be the same as if she had stayed at work. Any pension contributions she has to make during her leave are calculated on the maternity pay she is actually receiving, however, if this is different from her full pay.

This is a helpful change, although it does not extend to any extra period of unpaid maternity leave. However it has left pensions lawyers and actuaries arguing over the implications for money purchase schemes, where retirement pensions depend directly on the size of payments made. While employers will maintain their contributions at full-pay rate, women will be paying the relevant percentage of their actual maternity pay.

This leaves a shortfall in total contributions, potentially reducing the final pension. The DSS has said that employers do not need to make up the difference, but some firms of actuaries disagree.

(Photograph omitted)