Pregnancy and maternity discrimination claims can result in high levels of compensation and adverse publicity for employers. Deborah Nathan provides a summary of the special protections and entitlement for employees before and after childbirth.
All employers are legally required to comply with the law covering pregnant employees and those on maternity leave – there are no exceptions. The rules are wide-ranging and cover arrangements for health and safety, time off, pay, return to work and termination of employment.
Pregnancy
Employers have a specific duty to undertake assessments of risks to new and expectant mothers and their babies without undue delay. There is also a general duty to assess risks to new and expectant mothers where employees include women of a child bearing age and a duty to undertake a specific risk assessment for any individual who notifies the employer of pregnancy, recent birth or breastfeeding. Risks in relation to lifting and violence should be assessed as well as exposure to other hazards.
Pregnant women are entitled to reasonable paid time off for antenatal care during working hours. Employers are not entitled to rearrange an employees’ working hours so that appointments fall on non-working days or require the employee to make up the lost time. Employers can request evidence in the form of a certificate from a doctor or midwife confirming the pregnancy and an appointment card before permitting time off for the second and subsequent appointments. Employers are entitled to refuse a request for time off if it is unreasonable but should be cautious before doing so, particularly as a doctor will normally decide on the number of antenatal appointments.
Fathers or partners do not have a statutory right to time off for antenatal appointments although guidance from the Department of Business Innovation and Skills encourages employers to allow this1. If a father or partner is refused time off to attend antenatal appointments, they may be able to pursue a claim for discrimination because they have been treated less favourably because of their association with a pregnant woman, particularly if they can show that staff are generally allowed to work flexibly or take time off for other appointments. This issue has not yet been tested in a tribunal.
Maternity leave
Employees are entitled to 26 weeks ordinary maternity leave and a further 26 weeks additional maternity leave. The two week period following the birth (during ordinary maternity leave) is compulsory maternity leave when the employee is prohibited from returning to work. Employees wishing to take maternity leave must inform the employer of this at least 15 weeks before the expected week of childbirth (EWC) and their terms and conditions (save for remuneration) are protected during both ordinary and additional maternity leave.
When the employee has notified the employer of the date her maternity leave will start, the employer must, within 28 days give notice of the date her additional maternity leave will end. Employees are not required to give notice of their return unless they are planning to return early, in which case the employer can require the employee to give at least eight weeks’ notice. Employees can now work for up to 10 ‘Keeping In Touch’ days (‘KIT’) during maternity leave without jeopardising statutory maternity pay (‘SMP’). However, an employee cannot be compelled to do so.
Statutory Maternity Pay
In order to qualify for SMP, payable for 39 weeks, employees must show that:
- They have 26 weeks’ continuous service at the end of the ‘qualifying week’ (the 15th week before the EWC) and are still employed at that point.
- Their normal weekly earnings exceed the lower earnings limit for National Insurance purposes (currently £95).
- They are still pregnant 11 weeks before the start of the EWC or have already given birth.
- They have given at least 28 days’ notice (or as much notice as is reasonably practicable) of the date they want SMP to start.
- They have supplied a certificate (usually the MAT B1) confirming the EWC.
- They have stopped working.
If the employee complies with these conditions, they will be entitled to SMP, even if she resigns or is dismissed prior to or during their maternity leave.
When calculating SMP, employers should exclude certain payments, including employers pension contributions and non-cash vouchers. Where a pay increase is introduced during an employee’s maternity leave, it must be taken into account in SMP and backdated to the beginning of the leave. This applies even if the pay increase is not backdated for other employees. It is unclear whether this applies to contractual maternity pay.
HMRC takes the view that childcare vouchers amount to a non cash benefit and that an employee is entitled to receive the vouchers from her employer throughout her maternity leave without sacrificing her SMP, which presents a significant cost for employers. Practically, employees may wish to opt out of a childcare vouchers scheme before taking maternity leave to increase their salary for the purpose of the calculation of SMP and the overall benefit to the employer of reduced national insurance contributions for several employees may outweigh the cost of providing the vouchers to one employee on maternity leave. However, the costs and benefits should be considered carefully before introducing this benefit.
Returning to work
Employees returning from ordinary maternity leave are entitled to return to the same job they held prior to their leave. Employees returning from additional maternity leave are entitled to return to the same job, or if this is not reasonably practicable, a job which is suitable and appropriate in the circumstances. Habitual variations in a role (such as teaching different classes in a school) will be taken into account and may mean that an employee is not entitled to insist on an identical role on her return. The employee’s contract and the reality of the workplace are both relevant and it may be prudent to take advice on specific circumstances.
Dismissal
A dismissal will be automatically unfair if the reason for the dismissal is pregnancy, childbirth, maternity leave, adoption leave, parental leave, paternity leave or the statutory right to unpaid time off to care for dependants. Employers seeking to dismiss employees who have exercised these rights should ensure that they follow a fair process, comply with the ACAS Code of Practice2 and present clear evidence of the reason for dismissal that should not be connected in any way with the exercise of family-friendly rights.
Redundancy
In the present economic climate, redundancies are more frequent. While many employers are aware of their obligation to treat employees equally during a redundancy selection process, it is less well known that when an employee on maternity leave is at risk of redundancy, she has a specific right to be offered any suitable vacancy available. This is a positive right of first refusal; if the post is suitable for the employee on maternity leave, it must be offered to her first even if there are other employees who may also be suitable. Employers who fail to comply with this duty may face claims for automatically unfair dismissal and sex discrimination.
Summary of key points
- Initial risk assessments should be in writing and medical or expert advice should be sought if appropriate.
- Records of when notices have been given and received should be kept. Both employers and employees are required to give various notices in relation to SMP and maternity leave and precise records will assist if an employee alleges that they have not received the correct notice.
- Consider contact with the employee during maternity leave and agree Keeping In Touch (“KIT”) days if appropriate. Agreement should also be reached in relation to KIT days and payment as early as possible.
- Prepare for the employee’s return to work and consider the reasons for any changes to her role and whether these changes are more than the usual variations in duties.
- If dismissal is contemplated, ensure that there is adequate evidence, unrelated to the employee’s pregnancy, which supports the reason for dismissal. Where a redundancy situation has arisen, employees on maternity leave have the right to be offered any suitable vacancy. An employer should consider whether the relevant employee is suitable before opening up the post in a competitive process.
1 www.businesslink.gov.uk/bdotg/action/detail?type=RESOURCES&itemId=1080903029
2 See ‘New discipline and grievance procedures’ in The People Bulletin, 3 June 2009 by Gillian Dowling. news.thepeoplebulletin.co.uk/wordpress/employment-law/new-discipline-grievance-procedures/#more-480. See also ‘The Practicalities of Discipline’ in The People Bulletin, 30 July 2009 by Jane Klauber. news.thepeoplebulletin.co.uk/wordpress/employment-law/the-practicalities-of-discipline/