Every week it seems like there’s a news report about a company who behaved illegally towards a pregnant employee. Obviously any good company would want to behave legally and fairly, so let’s have a look at what that means for employers and employees.
Again, there’s lots of information available on the web. If you’re not sure that your employer is behaving correctly, check out these sites and make sure of your rights. Hey, I made a poem!
What are the basic things you need to know?
- Pregnant employees have the right to 52 weeks maternity leave. A pregnant employee has the right to both 26 weeks of ordinary maternity leave as well as 26 weeks of additional maternity leave. To qualify for maternity leave, an employee must tell their employer by the end of the 15th weeks before the expected week of childbirth that she is pregnant, when the birth is expected (by medical certificate if requested) and the date she intends to start maternity leave. This can normally be any date which is no earlier that the beginning of the 11th week before the expected week of childbirth up to the birth. It is best to advise the employer as soon as possible. However, your maternity leave will start automatically if you’re off work for any reason to do with your pregnancy from the fourth week before your baby is due.
- The first 26 weeks of maternity leave are called Ordinary Maternity Leave (OML). During OML, you will still get all the same rights under your contract of employment as if you were still at work. The only exception is that you will not get your normal pay unless your contract allows for it. But you will, for example, still be entitled to build up holiday and to get any pay increase. Though you are not entitled to your normal pay, most women employees are entitled to Statutory Maternity Pay or Maternity Allowance.
- As well as Ordinary Maternity Leave (OML), you can also take an additional 26 weeks’ maternity leave. This is called Additional Maternity Leave (AML). This gives a total of up to 52 weeks’ maternity leave. If you’re taking AML, this must follow on directly after OML and there must be no gap between the two.Your terms and conditions of employment remain the same throughout both OML and AML.
- You can choose how long you take off work for maternity leave, up to a maximum of 52 weeks. However, the law says that you must take at least two weeks immediately after the baby is born. If you work in a factory, you must take at least four weeks.
- Once notification has been given to the employer they must then write to the employee, within 28 days of her notification, setting out her return date. The employee must give eight weeks notice if she wishes to change the return date.
Time off for pregnancy matters
- All pregnant employees are entitled to reasonable time off with pay for antenatal care made on the advice of a registered medical practitioner, which may include relaxation classes and parent-craft classes. Except for the first appointment, employees should show the employer, if requested, an appointment card or other documents showing that an appointment has been made.
- It’s illegal for employers to refuse to give pregnant employees time off for antenatal care or refuse to pay their normal rate for this time off, but fathers don’t have a legal right to time off to accompany their partners.
- Statutory maternity pay (SMP) will be payable if the employee has been employed continuously for at least 26 weeks ending with the 15th week before the expected week of childbirth, and has an average weekly earnings at least equal to the lower earnings limit for National Insurance contributions. SMP is payable for 39 weeks; for the first six weeks it is paid at 90 percent of the average weekly earnings. The following 33 weeks will be paid at the SMP rate or 90 per cent of the average weekly earnings which ever is the lower. The SMP rate from April 2013 is £136.78 per week.
- Women who do not qualify for Statutory Maternity Pay may be entitled to Maternity Allowance, paid by the Benefits Agency, for up to 39 weeks. To qualify, they must have been employed or self-employed for 26 weeks out of the 66 weeks before the expected week of childbirth.
- During the maternity leave, the employee is entitled to benefit from all her normal terms and conditions of employment, except for remuneration (monetary wages or salary). She can do up to 10 days’ work during her maternity leave without losing any Statutory Maternity Pay, payment for these days should be agreed. At the end of maternity leave, she has the right to return to her original job, if that is not possible then a similar job on the same terms and conditions should be given. If a redundancy situation arises, she must be offered a suitable alternative vacancy if one is available. If there is no suitable alternative work, she may be entitled to redundancy pay.
Health and safety during pregnancy
- Employers must take account of health and safety risks to new and expectant mothers when assessing risks in work activity. If the risk cannot be avoided, the employer must take steps to remove the risk or offer suitable alternative work (with no less favourable terms and conditions); if no suitable alternative work is available, the employer must suspend the expectant mother on full pay for as long as necessary to protect her health and safety or that of her baby.
- Pregnant employees who think they’re at risk but their employer disagrees should talk to their health and safety or trade union representative. If your employer still refuses to do anything, talk to your doctor or contact the Health & Safety Executive.
During your maternity leave
- When you are on maternity leave, your employer should keep you informed of issues which may affect you. For example, you should be informed of any relevant promotion opportunities or job vacancies that arise during your maternity leave.
- The amount and type of contact between you and your employer must be reasonable. Contact can be made in any way that best suits either or both of you. For example, it could be by telephone, by email, by letter, by you making a visit to the workplace or in other ways.
- You are also allowed to work for up to ten days during your maternity leave without it affecting your maternity pay. These are called ‘Keeping in Touch Days’.
- Both you and your employer must agree about whether you work any Keeping in Touch Days, how many you will work, when you will work them and how much you will be paid for them. You are under no obligation to work them and your employer is under no obligation to offer them to you.
- You must also agree between you what sort of work you will do. Keeping in Touch Days could be particularly useful in enabling you to attend a conference, undertake a training activity or attend for a team meeting.
- The rate of pay is a matter for agreement with your employer. It may be set out in your employment contract or agreed on a case-by-case basis. However, you must be paid at least the National Minimum Wage.
- Some employment rights, such as the right to claim statutory redundancy pay, depend on how long you have worked for your employer. The length of time you have worked for your employer is the length of your ‘continuous employment’. It is important, therefore, to note that time spent on maternity leave counts when calculating how long you have been with your employer.
Returning to work after childbirth
- At present there is no statutory right to time off for breastfeeding or expressing milk and there is no legislation requiring employers to provide specific facilities where employees can express milk. However, the Health and Safety Executive’s advice is that employers are legally required to provide somewhere for pregnant and breastfeeding employees to rest and express milk. Toilets are not suitable for expressing milk. The employee should provide the employer with a written notification that they are breastfeeding; ideally this should be done before they return to work.
- In a genuine redundancy situation, and where there is no suitable alternative work available for those on maternity leave, then they can lawfully be made redundant, providing that pregnancy and maternity is not the reason for redundancy, the redundancy is genuine and the employer has followed the correct redundancy procedures and has considered any redeployment.
- During the protected period (the beginning to the end of the maternity leave) unfavourable treatment of a women because she is pregnant or on maternity leave is unlawful.
- A woman on maternity leave has the right to return to the same job before she left or if not possible at the end of the 52 weeks maternity leave than a suitable alternative must be found.
- Selecting a woman for redundancy because of her pregnancy, maternity leave or a related reason is automatically unfair dismissal as well as being unlawful discrimination.
- Failure to consult a woman on maternity leave about possible redundancy is likely to be unlawful discrimination.
- A woman made redundant while on maternity leave must be offered any suitable alternative vacancy if there is one available she doesn’t need to apply for it.
- If you’re not allowed to return to work after your Ordinary Maternity Leave, you may be able to make a claim for unfair dismissal, and make a claim for discrimination because of pregnancy and maternity leave. Both of these claims can be made regardless of how long you have worked for your employer or how many hours a week you work.If you wish to make claim for automatic unfair dismissal and discrimination, you should speak to an experienced adviser, for example, your trade union, CAB or an employment lawyer.
- If you’re sick when you are due back to work at the end of your Ordinary Maternity Leave (OML), you must get a medical certificate to send to your employer. Your OML will end at the end of the 26th week and you will then go onto sick leave. You will be protected from unfair dismissal for an additional four weeks after your 26 weeks’ OML if you are sick for this period.If an employer tries to dismiss a woman who is sick at the end of her maternity leave and so cannot return to work, this is likely to be discrimination.
- If you wish to return to work after AML, you should be offered your old job back, unless this is not reasonably practical. If it is not reasonably practical to offer you your old job back, you must be offered a job that is suitable for you and appropriate in the circumstances, on the same terms and conditions as your old job. For example, your pay must be at least the same as your old job.
- You have no automatic right to return to work part time after maternity leave. However, you may have the right to ask for flexible working and this request must be considered seriously by your employer. If they do not consider it seriously, this could be discrimination.
Again, all of these rights are legal rights which every employer must respect. There is no exemption for companies who don’t want to respect these rights.