Employment law protects the rights of pregnant workers in a number of ways. If you require specific advice on any of these issues, please contact one of our solicitors.
On this page, we aim to answer some of the common questions that arise when an employee becomes pregnant. Please click on the questions below for details:-
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Can an employee keep the company car while on maternity leave?
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Is an employee entitled to a pay rise whilst on maternity leave?
- What are the new 'family friendly' rights that were introduced by the Maternity and Parental Leave etc and Paternity and Aoption Leave (Amendment) Regulations 2006?
Please contact a solicitor at Advantage Employment Law for a free initial consultation if you require further advice.
Q How does an employee qualify for maternity leave?
All pregnant employees are entitled to 26 weeks' ordinary maternity leave (OML) irrespective of length of service.
A woman can choose when she starts her OML but it cannot be earlier than the 11th week before the expected week of childbirth (EWC). No employee may work for her employer for the two weeks immediately following the childbirth. This two week period is compulsory maternity leave and forms part of the OML.
During OML, the employee must continue to receive all her contractual benefits, except for salary.
Under the existing law, for births due to take place before the 1st April 2007, additional maternity leave (AML) is available only to employees who have completed 26 weeks' continuous service by the beginning of the 14th week before the EWC.
AML is a further 26 weeks' leave after the OML.
For births due to take place on or after the 1st April 2007, all employees are entitled to AML irrespective of length of service.
Please contact a solicitor at Advantage Employment Law for a consultation if you require further advice.
Q What are the employer's obligations in respect of allowing the employee to attend ante-natal classes?
The pregnant employee is allowed to take paid time off during working hours to attend ante-natal care appointments - Ss.55-56 Employment Rights Act 1996 (ERA).
If the employer unreasonably refuses time off or allows time off but refuses to pay for it, the employee can bring a claim before an employment tribunal within three months of the date of the appointment, seeking a declaration to that effect (s.57 ERA).
Such a refusal may also amount to sex discrimination. The employee may therefore be entitled to damages for injury to feelings.
In some circumstances, the employee may be entitled to resign and claim constructive dismissal.
Please contact a solicitor at Advantage Employment Law for an initial consultation if you require further advice.
Q What are an employer’s obligations in terms of protecting the health and safety of a pregnant employee?
Provided the employee has notified the employer in writing that she is pregnant, she is entitled to be protected from certain risks in the workplace. This means that the employer will have to carry out a risk assessment in respect of the pregnant employee to assess the health and safety risks.
If the assessment reveals any risk to the pregnant employee, or to the baby, the employer must follow a series of steps to ensure that she is not exposed to the risk or damaged by it.
If the risk cannot be avoided, the employee's working conditions or hours of work should be altered. Where that is not feasible, she should be removed to another job or, as a last resort, granted paid leave. However, where there is suitable alternative work within the company, the employee must be offered that work before being suspended on maternity grounds - S.67 ERA.
Please contact a solicitor at Advantage Employment Law for a consultation if you require further advice.
Q What are the conditions that a pregnant employee must fulfil in order to be entitled to Statutory Maternity Pay (SMP)?
There are six conditions that need to be satisfied. These are that the employee must:
- have worked for the employer for a continuous period of 26 weeks ending with the qualifying week - i.e. the 15th week before the expected week of childbirth (EWC)
- have become pregnant and have reached, or been confined before reaching, the start of the 11th week before the EWC
- have ceased working for the employer
- have average weekly earnings in the eight weeks up to and including the qualifying week at least equal to the lower earnings limit for Class 1 National Insurance contributions (currently £84)
- have given 28 days' notice to her employer of the date when she expects liability to pay SMP will begin or, if not reasonably practicable, such lesser notice as was reasonably practicable
- have produced medical evidence of her pregnancy and of the Expected Week of Childbirth (EWC).
These requirements are contained in the Statutory Maternity Pay (General) Regulations 1986.
Please contact a solicitor at Advantage Employment Law for a consultation if you require further advice.
Q Is an employee who has been dismissed for misconduct prior to starting maternity leave entitled to SMP?
Provided the employee fulfills the conditions for payment of SMP she will be entitled to receive it for the full 26-week period regardless of her misconduct.
Note that where the employer terminates the employee's employment before she qualifies for SMP and the employee can show that the sole or principal reason for dismissal was to avoid liability for SMP, he will still have to pay her SMP if she has been employed by him continuously for at least eight weeks - Reg 3 SMP Regulations. In this regard, she will be deemed to have been employed by him, regardless of when her dismissal occurred, up to the end of the qualifying week - i.e. the 15th week before the expected week of childbirth.
For the purposes of determining the amount of SMP payable, the employee's weekly earnings will be calculated by reference to what she earned during the eight weeks immediately preceding the date when she was last paid. She will also be able to bring claims for automatically unfair dismissal and sex discrimination.
Please contact a solicitor at Advantage Employment Law for a consultation if you require further advice.
Q Does a pregnant employee who has yet to go on maternity leave have any special redundancy rights should a redundancy situation occur?
No. Pregnant employees who have not yet commenced their maternity leave by the time a redundancy situation arises are not entitled to special protection. However, an employer going through redundancies should be careful when selecting a pregnant employee for redundancy. If the reasons for selecting her in preference to other comparable employees are related to her pregnancy, this would be an automatically unfair dismissal.
The pregnant employee may also be able to claim unlawful sex discrimination contrary to the Sex Discrimination Act 1975. If successful, her compensation would be certain to include an award for injury to feelings, which may be considerable.
Please contact a solicitor at Advantage Employment Law for a consultation if you require further advice.
Q If the redundancy situation arises while an employee is on maternity leave, is she entitled to priority treatment?
Yes. Where a redundancy situation arises while an employee is away from work on ordinary or additional maternity leave, the law affords her special protection. Reg 10 of the MPL Regulations provides that, if the employer has a suitable available vacancy, he must offer it to the employee on maternity leave (before the end of her existing contract) in preference to any other employee who is similarly affected by the redundancy situation but who is not absent on maternity leave. This mandatory requirement extends to vacancies with an associated employer or with a successor to the original employer. The new contract will take effect immediately on the ending of the previous contract.
The vacancy must be suitable in relation to the employee and appropriate for her to take up - having regard to factors such as pay, type of work and location - and must not be substantially less favourable than her previous job under her original contract - Reg 10(3). If the employer has a suitable vacancy within his company and fails to offer it to the employee, any subsequent dismissal will be automatically unfair under S.99 ERA if the sole or principal reason for the dismissal is redundancy - Reg 20(1)(b).
If the employee unreasonably refuses a suitable available vacancy, however, her dismissal will almost certainly be fair and she will lose her right to a redundancy payment - S.141 ERA.
Where no vacancy exists, the employer can dismiss the employee on the ground of redundancy. However, care should be taken that she is properly consulted and given correct notice. The employee is also entitled to receive a written statement of the reasons for her dismissal (S.92(4) ERA) without having to request it and regardless of her length of service. Provided she has the necessary two years' qualifying service, she will also be entitled to a statutory redundancy payment. Once the dismissal takes effect, the maternity leave period automatically comes to an end - Reg 7(5).
Please contact a solicitor at Advantage Employment Law for a consultation if you require further advice.
Q. Can an employee keep the company car while on maternity leave?
An employee taking ordinary maternity leave (OML) is entitled to the benefit of the terms and conditions of employment that would have applied had she not been absent, while remaining bound by contractual obligations provided these are compatible with being on maternity leave - S.71(4) ERA and Reg 9 MPL Regulations. The only exception to this is that she is not entitled to receive remuneration, which is replaced by SMP (unless her contract expressly provides that she will continue to be paid during OML). Reg 9(3) provides that 'only sums payable to an employee by way of wages or salary are to be treated as remuneration'. This strict definition seems to cover only the actual monetary payments made to the employee in return for the work done and not any other benefits the employee receives through her employment. Consequently, the employee should be allowed to make use of the company car during her OML (unless it is provided solely for business use) as it constitutes a benefit in kind she would have received had she not been absent on OML.
During additional maternity leave (AML), on the other hand, the employee is only entitled to a handful of terms and conditions of employment and is bound only by a few fundamental obligations, unless her contract provides otherwise. Reg 17 of the MPL Regulations stipulates that the only benefits the employee is entitled to are the benefit of her employer's implied obligation to her of trust and confidence and any terms or conditions of her employment relating to notice of termination, compensation in the event of redundancy or disciplinary or grievance procedures. The use of a company car is therefore not a benefit that the employee is entitled to during AML. However, it may well be that her contract of employment is more generous and allows her to keep using the car during AML.
Please contact a solicitor at Advantage Employment Law for a consultation if you require further advice.
Q Is an employee entitled to a pay rise whilst on maternity leave?
Yes. This was definitively established by the European Court of Justice in Alabaster v Woolwich plc 2005 ICR 695 (Brief 757). In that case the Court ruled that any pay rise awarded after the beginning of the period used to calculate SMP (i.e. the eight-week period ending with the 15th week before the expected week of childbirth) but before the end of the maternity leave period must be taken into account when calculating the amount of SMP payable. The Statutory Maternity Pay (General) (Amendment) Regulations 2005 SI 2005/729, which were brought into force on 6 April 2005, made amendments to that effect. Therefore, if the employer awards a pay rise which is effective at any time from the start of the period used to work out SMP and the end of maternity leave, he must recalculate the SMP payable to the employee and pay the balance owed to her.
Note that employees who have missed out on the benefit of pay rises while on maternity leave are entitled to ask for a recalculation of SMP within six years of payment. However, employers are only under a duty to keep SMP records for three years after the end of the tax year to which they refer. If, therefore, the employee makes a claim in respect of a period for which her employer lacks the necessary records, she will have to provide sufficient evidence to substantiate her claim. If the employee has left the employment, a claim for SMP arrears must be made within six months of her date of termination.
Please contact a solicitor at Advantage Employment Law for a consultation if you require further advice.
Q Must an employer allow an employee returning from maternity leave to return to the same job on a part-time basis?
An employee's right to return from maternity leave is a right to return to her old job on the same terms and conditions unless, in the case of AML, it is not reasonably practicable for her to return to her old job, in which case she has a right to return to a suitable and appropriate alternative job on the same terms and conditions - Regs 18 and 18A MPL Regulations.
The right to return after maternity leave does not include a right to return on different terms where the employee wants to work part time in order to accommodate her family responsibilities.
However, the employee does have the right to request flexible working - under Ss.80F-I ERA and the Flexible Working (Eligibility, Complaints and Remedies) Regulations 2002 SI 2002/3236 - whereby she can require the employer to consider a change in her working hours.
The employer must comply with a minimum procedure and give reasons for any refusal. Although the employer is entitled to refuse a flexible working request, provided it is for one or more of the prescribed reasons, he should be careful not to adopt a potentially discriminatory policy by insisting that a certain job cannot be performed on a part-time basis.
The employee may bring an indirect sex discrimination claim, arguing that the employer applied a provision, criterion or practice (PCP) - i.e. that the job is full time - which has a disproportionate impact on women because they are more likely than men to have primary childcare responsibility and fewer women than men will therefore be able to comply with it. Unless the employer can objectively justify the requirement, the employee will succeed in her sex discrimination claim.
Please contact a solicitor at Advantage Employment Law for a consultation if you require further advice.
Q Can an employee with post natal depression be dismissed?
An employee who is dismissed for a pregnancy-related illness at any time between the inception of pregnancy up to the end of the statutory maternity leave period will be able to claim that her dismissal is automatically unfair - Reg 20(3)(a) MPL Regulations. This will also automatically amount to direct sex discrimination.
However, Reg 20(3)(b) makes it clear that an employee is not protected from a childbirth-related dismissal that occurs after the end of the maternity leave period. This means that a dismissal after the end of maternity leave for an illness arising out of pregnancy or childbirth, such as post-natal depression, will not be automatically unfair but the fairness or otherwise of the dismissal will be considered under the ordinary unfair dismissal principles.
An employer considering dismissing an employee for post-natal depression after the end of her maternity leave must therefore adopt a fair procedure involving consultation with the employee, a thorough medical investigation and, where appropriate, consideration of alternative employment.
The position is similar in relation to a possible sex discrimination claim. A dismissal for a pregnancy-related illness once the employee becomes pregnant up until the end of her maternity leave will be automatically discriminatory on the ground of sex.
However, if the employee is dismissed after her statutory maternity leave period has come to an end for an illness that arises out of pregnancy or childbirth, the dismissal falls to be compared to that of a sick man. If the employer would have dismissed a man in the same or similar circumstances as the woman, then the woman would not be able to claim that she had been discriminated against on the ground of sex.
An employer must not take any absence period between the beginning of her pregnancy and the end of the maternity leave into account. Otherwise, dismissal will amount to sex discrimination.
Please contact a solicitor at Advantage Employment Law for a consultation if you require further advice.
Q What are the new 'family friendly' rights that were introduced by the Maternity and Parental Leave etc and Paternity and Aoption Leave (Amendment) Regulations 2006?
Although the new maternity rights came into force on the 1st October 2006, they only apply to pregnant employees who are due to give birth after the 1st April 2007, or adopters who are planning to adopt after that date.
For pregnant employees with an expected week of childbirth before the 1st April 2007, the current rules still apply.
Additional maternity leave for all pregnant employees
Under the existing law, which still applies to workers who expect to give birth prior to the 1st April 2007, all pregnant employees are entitled to 26 weeks’ Ordinary Maternity Leave (“OML”), regardless of their length of service. However, women who have sufficient qualifying service are entitled to a further 26 weeks maternity leave, known as Additional Maternity Leave (“AML”). However, the new law allows all employees to take AML, irrespective of length of service.
This does not apply to adopters. They already have the right to ordinary and additional adoption leave if they have been continuously employed for 26 weeks up to the week in which they are notified of having been matched with a child.
Extension of Notice to Return to work
The new regulations double the period of notice women are required to give if they wish to return to work early from maternity or adoption leave. Currently, an employee returning from leave must only give 28 days’ notice. Under the new rules, the notice required will be 8 weeks.
This enables an employer to plan more effectively for the employee’s return.
‘Keeping in touch’ days
The existing law discourages women and adopters from making contact with their employer during their leave period. This is because, if they do as little as only one day’s work, they lose their entitlement to statutory pay for the whole of that week.
Under the new law, an employee can do up to 10 days’ work for the employer during maternity or adoption leave without losing statutory payments for those days. These are known as ‘keeping in touch’ (KIT) days. This work can include training or any activity designed to keep the employee in touch with the workplace.
The introduction of KIT days reflects the needs of both employers and employees to communicate during the leave period.
Reasonable Contact
The new laws also clarify that an employer may make reasonable contact with an employee during the maternity or adoption leave period. The purpose of this change is to remove the uncertainty that many employers felt about whether they should contact a worker on maternity or adoption leave.
Removal of small employer exemption
Under the existing law, an employer with five or fewer employees could refuse to allow an employee to return from additional maternity leave or adoption leave to the same or similar work if it is not reasonably practicable to do so.
From the 1st April next year, if any employer of any size prevents an employee from returning to the same or a similar job at the end of the additional maternity leave or adoption leave, the dismissal will be automatically unfair.
Statutory Maternity Pay
The new law extends the period during which an employee is entitled to receive statutory maternity pay (SMP) or statutory adoption pay (SAP) from 26 weeks to 39 weeks.
Please contact a solicitor at Advantage Employment Law for a consultation if you require further advice.
Q What procedure must be followed when an employee wants to request flexible working arrangements?
An employee with a child under the age of 6 (or in the case of a disabled child, under 18) has the right to request flexible working. This right is available to fathers and mothers, provided they have been employed for at least 26 weeks.
Making the Application
The employee should make the application in writing. The application (which must be dated) should fulfil the following requirements:-
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State that it is an application for flexible working;
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Specify the change applied for and what date it is proposed that it should come into effect;
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Explain what effect the employee thinks it will have on the business and how that effect may be dealt with;
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State the relationship with the children being cared for;
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State the date of any previous applications.
Responding to the Application
Although the employer is not under a duty to accept the application to request flexibly, the request can only be refused for one or more of the following reasons:-
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The burden of additional costs;
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Detrimental effect on the ability to meet customer demand;
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Inability to re-organise work among existing staff;
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Inability to recruit additional staff;
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Detrimental impact on quality;
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Detrimental impact on performance;
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Insufficiency of work during the periods the employee proposes to work;
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Planned structural changes.
If the employer accepts the request, the employee must be notified in writing within 28 days. This written notification should state the agreed variation and the date from which it will take effect.
If the employer does not accept the request, the employer must arrange a meeting with the employee within 28 days of receiving the application. Following that meeting, the employer must provide written notification of the decision within 14 days.
If, following the meeting, the employer decides to refuse the request, the employer must write to the employee, stating the grounds for refusal. In particular, the employer should state which of the eight grounds set out above apply and why.
The employee must be given the opportunity to appeal against a refusal. Any appeal should be made within 14 days of receiving notice of refusal.
Following the appeal hearing, the employer should again set out the decision in writing and the reasons for it.Explain how the employee meets the eligibility requirements set out above.
What if the employee is still unhappy with the decision?
The employee may be entitled to bring an indirect sex discrimination claim, arguing that the requirement that the job is full time has a disproportionate impact on women because they are more likely than men to have primary childcare responsibility and fewer women than men will therefore be able to comply with it.
Unless the employer can objectively justify the requirement, the employee will succeed in her sex discrimination claim.
Please contact a solicitor at Advantage Employment Law for a consultation if you require further advice.
