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 for a telephone consultation.
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?
Please contact a solicitor on 01604 601 575 for a consultation about your employment situation.
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.
All employees are also entitled to a further 26 weeks' additional maternity leave (AML).
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.
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.
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.
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)
- still be pregnany 11 weeks 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
- 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 EWC.
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 39-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. 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.
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. If successful, her compensation would be certain to include an award for injury to feelings, which may be considerable.
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. 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.
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 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.
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.
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). 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. 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.
Q Is an employee entitled to a pay rise whilst on maternity leave?
Yes. 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.
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.
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.
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. This will also automatically amount to direct sex discrimination.
However, 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.
