China
The parties to a contract of employment are to a large extent free to negotiate commercially appropriate terms, although the ECL provides that the following key matters must be covered:
employee’s name, domicile and identity card (or other valid identity document) number; term of employment; job description and place of work; working hours (generally no more than eight hours per day and forty per week), rest time and holidays (up to 15 days’ allowance per year, starting after the first year of employment); pay; social insurance; labour protection, working conditions and protection against occupational hazards; and other matters, as required by laws and regulations.
UK
As is the case in China, the parties to an employment contract are generally free to negotiate suitable terms. Provided an employee has been provided with written Particulars of Employment (referred to at paragraph 2, above) there are no specific rules governing content, save that some minimum statutory requirements can override contractual provisions in relation to matters such as pay, working hours and notice periods.
Also both employers and employees should be aware that there are certain terms implied into all employment contracts. For example, employees must exercise reasonable care and skill, carry out reasonable orders and not divulge confidential information or work for competitors. Employers, in turn, must preserve a relationship of trust and confidence with their employees.
China
Female employees are entitled to 98 days’ (14 weeks) maternity leave, 15 of which may be taken immediately before the child’s birth. This period of 15 days may be extended in the event of complications with the pregnancy.
During their maternity leave, female employees are entitled to receive full pay and are exempt from termination of their contracts. Mothers are also entitled to one hour’s leave per day (per child) for the first year of the child’s life, for breastfeeding.
There is no statutory paternity leave in China. In some cases, fathers may be entitled to one or two days’ paid leave, depending on local regulations.
UK
All women are entitled to 52 weeks of maternity leave, made up of 26 weeks’ ‘Ordinary Maternity Leave’ (OML), during which period the employment contract continues and a further 26 week period of ‘Additional Maternity Leave’ (AML). Where consistent with a period of maternity leave, any relevant contractual obligations and benefits will also apply.
During AML, although the contract of employment continues, contractual obligations in relation to normal remuneration cease to apply. Note that a woman must take the two weeks’ maternity leave immediately after the birth of the baby.
Provided a woman has worked for her employer for a continuous period of 26 weeks, she will be entitled to ‘Statutory Maternity Pay’ (SMP) for 39 weeks. The period of 26 weeks must have accrued by the time a woman reaches the end of the 15th week before the week in which childbirth is expected. We will not consider the complicated criteria which govern rates of maternity pay in this briefing.
Fathers are also eligible for paternity leave of two weeks, which can be taken in a continuous period at any point within 56 days of the child’s birth. In many cases, employees will also be entitled to receive statutory paternity pay for a period of two weeks. Where a mother returns to work after OML, a father has a right to a 26 week period of Additional Paternity Leave, subject to certain conditions.
Employers should be aware that new rules on parental rights were introduced in October 2014 in relation to babies whose expected due date is on or after 5 April 2015. Broadly speaking these will allow parents to share the statutory maternity leave and pay that until now has only been available to mothers and abolish Additional Paternity Leave.
For more information on the complex criteria which govern rates of maternity and paternity pay, or for details on adoption leave, please contact our employment lawyers, who will be happy to assist.