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Maternity leave: Is it all pensionable?
Schemes are required to pension ordinary maternity leave (“OML” – the first 26 weeks, when basically all employment terms other than salary continue). However, they only need to pension additional maternity leave (“AML” – the next 26 weeks when only minimal employment terms have continued) when it is paid.
However, when changes to AML were introduced for employees giving birth to children after 5 October 2008, requiring AML to be treated the same as OML for most purposes, but not for pensions, questions arose.
UK maternity and sex discrimination laws were changed following a successful Equal Opportunities Commision challenge that the old legislation did not reflect European Court of Justice (ECJ) decisions. This meant that the UK could no longer maintain the same distinction in the treatment of benefits between OML and AML.
The case does not go so far as saying that normal remuneration (as opposed to benefits) needs to be continued, but there is some uncertainty whether pensions are benefits or remuneration for maternity leave purposes. The courts have previously decided that pensions are like pay, but could conceivably take a different view here.
Helpfully, the Government has indicated that it does not think unpaid AML needs to be pensioned, and this view is now reflected in amendments to the maternity laws affecting pensions.
So for now schemes should not need to change their practice on pensions, but just keep an eye out for future developments.