Maternity Leave Rights
Maternity leave rights are an important part of employment law which can be the cause of much confusion depending on an individual’s circumstances.
An employee must notify her employer by the end of the 15th week before her expected week of childbirth of the following:
- that she is pregnant;
- when she intends to start her maternity leave; and
- her expected week of childbirth.
An employer can request that the employee notify them when she wishes to start her ordinary maternity leave in writing before the 15th week, however this must not be earlier than the 11th week before her expected week of childbirth.
An employee can change the date on which she wishes to start her maternity leave as long as she gives the employer at least 28 days notice of the new date, or if this not reasonably practicable, as soon as it is.
An employer must then reply to the employee’s notification within the next 28 days, confirming the date on which the employee’s additional maternity leave period will end.
Time off for Antenatal Appointments
An employee has the right to take a reasonable amount of paid time off work to enable her to attend antenatal clinics, or a clinic which has been recommended by a registered medical practitioner, midwife or health visitor. Her employer can ask her to produce a certificate confirming that she is pregnant, and/or an appointment card to confirm the existence of an appointment. This does not apply to the first antenatal appointment. There is also the right for her spouse or partner to attend up to two antenatal appointments on an unpaid basis.
A risk assessment should also be carried out as soon as the employer has been notified that an employee is pregnant. A failure to carry out a risk assessment in respect of a pregnant employee is potentially unlawful sex discrimination. The findings of the risk assessment should be be recorded in writing but may be communicated orally to the employee.
If following the risk assessment there is or is perceived to be a risk for the employee or her child the employer must alter her working conditions or hours to avoid the risk. If this cannot be done then she would be suspended on full pay until the risk has passed (Regulation 16 of the Management of Health and Safety at Work Regulations 1999).
If a midwife or medical practitioner certifies that an employee should not be working nights (this includes the time that she is breast feeding or if she has given birth within the previous 6 months) then her employer should consider suitable alternative work during the day, or, again if that is not reasonably practicable suspend her from work until the risk has passed.
Ordinary and Additional Maternity Leave
Regardless of an employee’s length of service she is entitled to take up to 52 weeks maternity leave. This is split into 26 weeks ordinary maternity leave followed by 26 additional maternity leave. It is also criminal offence to commit or require a woman to work for a period of 2 weeks commencing on the date of childbirth (compulsory maternity leave). This period is 4 weeks for factory workers.
Maternity leave can and will be triggered by the following events:
- the day that the employee has requested her maternity leave to start;
- if an employee gives birth prematurely then the maternity leave will start the day following the childbirth;
- if the employee is absent from work due to a pregnancy related reason within 4 weeks of the expected week of childbirth then her leave will start on the day after (the first day of her absence within the 4 week period).
If an employee has a still birth after 24 weeks of pregnancy she will still be entitled to maternity leave, an employee who miscarries before this point will not. Further, an employee whose baby only lives for a short period of time is still entitled to maternity leave.
The terms and conditions in an employee’s contract remain in full force (with the exception of pay) for the duration of her maternity leave. Holiday will accrue throughout the maternity leave period. If an employee is dismissed during the ordinary or additional maternity leave period then she is entitled to receive her statutory maternity pay for the whole period (assuming that she qualifies for it).
Statutory Maternity Pay
To qualify for statutory maternity pay (SMP) an employee must have been employed for at least 26 weeks before the 15th week before the expected week of childbirth. She also needs to be earning at least the National Insurance lower limit. If she is dismissed any time after the 15th week, she is entitled SMP for the 39 week period.
For the first 6 weeks the employee is entitled to 90% of her average gross weekly earnings with no upper limit. The remaining 33 weeks is at the lower rate of either the SMP rate, or 90% of her average gross weekly earnings.
If an employee does not qualify for SMP then she will be entitled to a Maternity Allowance which is essentially the same apart from there being no right to 90% of earnings in the first 6 weeks.
Right to Return
When an employee returns to work during her ordinary maternity leave she is entitled to return to the same job, on the same terms and conditions.
When an employee returns to work within or immediatley following her additional maternity leave then she has the right to return to her original job and if it is not reasonably practicable for her to do so, she has the right to return to another job that is suitable and which should be no less favourable than her original post.
If an employee wishes to return before the end of both the ordinary and additional maternity leave period (52 weeks) she should give her employer at least 8 weeks notice of the date on which she wants to return. If she changes her mind then the 8 week’s notice still applies but to the earlier return date. If an employee fails to give correct notice an employer can delay her return until the conclusion of the 8 week period. If the employee returns early without giving the correct notice then the employer does not have to pay her for that period. However, if an employer has failed to inform the employee on the date of which her additional maternity leave will end in line with its obligations then the employee does not have to give notice of her intention to return to work early and the employer has no right to delay her return or withhold pay if she returns early.
Keep in Touch Days
An employee may carry out up to 10 days work for an employer during her maternity leave period without bringing the maternity leave to an end. This work can include training or any activity aimed at keeping in touch. The days can be taken as a single block or separately. Any work carried out on a particular day will constitute as one day’s work irrespective of the length of time that the employee works. The keep in touch days are paid. The keep in touch days must not be used during the 2 weeks compulsory leave period.
There is no obligation on the part of the employee or employer to attend or provide keeping in touch days. If an employee exceeds the 10 keeping in touch days and worked an 11th day or more then she will forsake her statutory maternity pay for that week.
Redundancy During Maternity Leave
An employee who is made redundant during her ordinary or additional maternity leave has the right to be offered suitable alternative employment under a new contract the day immediately following the day on which her contract comes to an end. The alternative position should be both suitable and not substantially less favourable. If the employer fails to offer suitable alternative employment then she would be treated as being unfairly dismissed - unless the employee unreasonably refuses an offer of suitable alternative employment (in which case she would forfeit her right to redundancy pay) or if her employer can provide evidence to a Tribunal that there is no suitable alternative work for her to do. It would be for the Tribunal to determine the reasonableness of the employer’s refusal or failure to offer suitable or alternative employment and the reasonableness of an employee’s refusal to accept an offer.
Consultation in respect of the redundancy would be carried out in the normal way however it is good practice for the employer to be flexible in respect of consultation meeting times and the location of the meeting. NB: If a selection criteria is used it should not take into account any absences as a result of the pregnancy.
It is automatically unfair to dismiss an employee (or select for redundancy) for a reason connected to her pregnancy, the fact that she has given birth and/or the fact that she sought to exercise right to maternity leave. The employee will also most likely have a discrimination claim.
An employee who is victimised, penalised or subjected to any other detriment for taking advantage of her rights during her pregnancy, childbirth or maternity leave may complain to an Employment Tribunal and be awarded compensation.
Right to Return on a Part Time Basis
There is no statutory right for an employee to return to work on a part time basis. However failure to consider such a request for flexible working could prompt a sex discrimination claim.
If you want to ensure that you do not fall foul of maternity leave law resulting in a potential claim of sex discrimination, Ashby Cohen can help you. We specialise in employment law cases, and our years of experience as employment lawyers make us especially qualified to assist you with any maternity leave issues you may have. Please contact us for an initial free telephone consultation.
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