Non-Executive Directors are not employees in the traditional sense, which can make it difficult for new or expectant parents to understand their options during and after pregnancy or adoption. In this blog, we explore the unique position of NEDs during the parental leave period, helping you to make informed, confident decisions that will work for you and your board.
Your Legal Rights
Whilst being a NED places you outside the scope of many statutory employment protections (more on that later), you are still protected under the following key areas of the law.
Protection Against Discrimination (Equality Act 2010)
Non-Executive Directors are protected against pregnancy and maternity discrimination laws, which means that they cannot be treated unfairly, removed, or disadvantaged because of pregnancy. Being dismissed or not re-appointed because you are pregnant or a new mother, can be deemed to be unlawful discrimination.
Likewise, if a man is treated less favourably because he is taking on caring responsibilities, including paternity leave, where women in comparable situations would have been treated differently, this could fall under sex discrimination.
Health & Safety Considerations (if applicable)
An organisation has a duty of care if your NED role involves travel, site visits, or requires your physical presence in risky environments. This may include making reasonable adjustments for health and safety although this is more common in executive-level roles.
Time Commitment – Your Options
Under UK employment law, there is a legal minimum requirement that employees must have at least two weeks off after giving birth. However, NEDs are not employees and since there are no employment contracts in place to trigger statutory maternity rights, this rule doesn’t apply. As a NED, you are not legally required to take any time off. There isn’t a ‘right answer’ as to whether you continue to serve as a NED through parental leave or not. You need to work out what’s right for you, and discuss it with the Chair of your board. Let’s lay out the options you have after the adoption or birth of your child:
Staying Active
It’s entirely possible to continue in your NED role after having a baby but how that looks, will be different for everyone. Let your Chair know that you plan to stay engaged and don’t be afraid to discuss any small adjustments you may need. Also, it’s important to be realistic that it will take some adjustment and you won’t return to full capacity straight away. Staying active could be attending board meetings only (either in-person or remotely), reading and commenting on board papers (even if you cannot attend meetings) or focusing on strategic input rather than operational committees. Work with your Chair to find out what set-up will work best for you. If you are the Chair, you will need to decide whether you continue as Chair, or not. You will need to make sure you have adequate support with childcare to undertake this duty.
We cover the pros and cons of returning to the board during this period and the practicalities to making this work in part 2 of our NED Mums and Dads blog due to be released soon.
Taking a Temporary Break
If you are taking some time away, communicate with the board that you’ll be switching off for a certain period and only expect to be contacted in extreme emergencies (after all you are still a Director). Just remember with this option that being an absent director means that your liability continues even whilst you aren’t there.
The organisation will need to work out whether they still meet quorum whilst you are absent, and discuss the repercussions of that (for example if they know they will only meet it if 100% of other NEDs attended then there is a risk that if someone is sick they’ll have to postpone the meeting, whereas usually they can continue with 1 person missing).
It’d be worth keeping in touch with the Chair at pre-agreed intervals (e.g. a phone call every month) while you are off so you keep afloat with what is going on in the organisation.
Stepping Down Permanently
Sometimes you might decide that stepping away from your NED role is the right decision for you and that’s okay too. In this case, make sure that you give as much notice to your board as you possibly can, offer to support the handover and keep the door open. Remember it’s a pause, not a full stop to your board career (if you want it to be).
Getting Paid
If you have a NED role with no other employment…
NEDs are not employees, they are ‘office holders’, with a contract for services so they do not qualify for Statutory Maternity Leave, Statutory Paternity Leave, Statutory Paternity Pay, Statutory Maternity Pay (SMP), Statutory Adoption Leave or Statutory Adoption Pay.
If you have a full-time job alongside your NED role…
If you are in full-time employment, you’ll be receiving Statutory Maternity Pay but as a NED, can you still receive this alongside PAYE income from the organisation you serve on the board of?
One of our clients has been through exactly this situation recently with one of their board members. They advised that HMRC confirmed to them that the NED can continue with her duties (and will receive continued payment) and alongside Statutory Maternity Pay, during that period.
It’s important to discuss how pay will work with your board ahead of time. If they choose to offer time off or fees during a maternity period, it must be agreed and documented. Some boards may agree to a fee holiday, reduced expectations during a certain period or continue to pay fees if your duties are partially fulfilled but there are no guarantees of any of this and it will be on a case-by-case basis.
Are you a NED parent? Join Sarah Pierman, Michelle Baker, and Liz Cain (all Non-Exec Mums) as they share their stories and discuss the pros and cons of parenting whilst being a Non-Executive Director in this video:
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View our roles
Whether you are a new NED looking for your first role, or a seasoned Non-Exec ready for your next boardroom challenge, you are welcome to sign up and view our roles for free here. We list c.100 Non-Executive Director board roles each month from all over the UK. We also provide blogs and YouTube videos to encourage and inspire NEDs.
Join our free NED Community
If you are a Non-Executive Director on a UK board, join our free NED Community! We host monthly online meet-ups where we invite guest speakers to contribute on a range of topics as well as allowing time for peer-to-peer support between Non-Execs. If you want to become a more thoughtful and effective board member, register here.
Advertise your role with us
Are you/ your board recruiting a Non-Executive Director or Chair? We can help you advertise your role to candidates who will bring the skills, experience and perspectives you need on your board. We have helped companies and search firms advertise over 1000 Non-Exec board roles a year from across the UK. You can see information on our advertising options here and you can get in touch with the Dynamic Boards team at hello@dynamicboards.co.uk.
