Guide to Maternity Rights

Guide to Maternity Rights

This Guide sets out some of the main points to keep in mind regarding an employees maternity rights. Specifically, it deals with the following issues:

  • What rights do women who are pregnant/on maternity leave have?
  • What are the health and safety considerations for female employees of child-bearing age?
  • What are the practical issues for managers when the employee is on maternity leave?
  • What is the right to request flexible working?
  • What are the consequences of not complying with maternity rights legislation?
  1. What rights do women who are pregnant/on maternity leave have?

Pregnant women or women on maternity leave have special rights under employment law. In particular, they are entitled to:

  • Paid time off during working hours to receive antenatal care. After the first visit as an employer you can ask the employee for proof of the antenatal appointments in the form of a hospital or midwifery appointment card. The employee is also entitled to paid time off to attend parent craft and relaxation classes if recommended by their doctor or midwife.
  • 52 weeks maternity leave – comprising 26 weeks’ ordinary maternity leave (OML) and 26 weeks’ additional maternity leave (AML), regardless of their length of service.
  • 39 weeks’ statutory maternity pay (SMP), provided they have at least 26 weeks’ service with their organisation by the end of the 15th week before the expected week of childbirth (EWC) and meet certain other qualifying conditions related to earnings and notification
  • Work for their employer during their leave period for up to 10 days (known as “keeping-in-touch” days) without losing SMP or bringing their leave to an end
  • Return to work to their old job. If, following AML, it is not reasonably practicable for an employee to return to their old job, you may offer them a different post as long as that position is a suitable alternative on no less favourable terms and conditions
  • The right to request to work flexibly on their return to work
  • Receive all non-pay benefits (eg company car, mobile phone, childcare vouchers, gym membership etc) during OML (see below for AML). This is the case even if the employee has no contractual right to the benefit and the employer has provided it only as a matter of discretion. Although the employer might have a general right to withdraw discretionary benefits from all employees, it would be an unlawful exercise of your discretion to withdraw it from an employee just because she is on maternity leave
  • Receive any non-pay benefit (eg, a company car) during her AML if she received it during her OML.
  1. What are the health and safety considerations for female employees of child-bearing age?

Employers have a legal obligation to assess the potential health and safety risks to which their employees may be exposed while at work. Where an employer’s workforce includes women of child-bearing age, the assessment must also identify hazards and risks that new and expectant mothers may be exposed to, whether or not the employer is actually employing new and/or expectant mothers at the time.

The sorts of things the risk assessment should consider include:

  • ergonomic issues, eg relating to the workstation or the equipment used by employees
  • work that involves:
  • lifting
  • carrying heavy loads
  • stretching and bending
  • standing or sitting for long periods of time
  • unpleasant smells
  • excessive stress or long hours
  • hazardous substances or chemicals
  • night shifts
  • access to sanitary facilities and rest periods.

Where risks cannot be avoided and an employee is either pregnant or a new mother/breastfeeding, the employer must alter their working conditions or hours of work or, if this is not possible, suitable alternative work (if available) must be provided. If working conditions or hours cannot be altered, and no suitable alternative work is available, the employee must be suspended on normal pay for as long as is necessary to protect her health and safety and that of her newly born or unborn child. If an employee unreasonably rejects an offer of alternative work, she does not need to be paid while suspended.

  1. What are the practical issues for managers before the employee goes on maternity leave?
  • Once the employee has informed you that she is pregnant, make sure she has a copy of the organisation’s maternity policy and explain the statutory and contractual rights that she is entitled to.
  • Make sure that a risk assessment is carried out to identify any potential risks to an expectant mother, and discuss with the employee what arrangements need to be made for her to stay healthy during her pregnancy.
  • Remind the employee that she should follow the usual absence reporting procedures if she is away with a pregnancy-related illness. She should indicate that the reason for her absence is pregnancy-related — you will need to make sure that any such absences are not counted if the employee could face disciplinary action over her absence record. When she returns from the absence, check that her illness was not caused by anything in the workplace — if it was, you will need to make sure that the risk is removed.
  • Plan how you will cover the employee’s work while she is on leave. Keep in mind that an employee is not obliged to tell you how long she intends her maternity leave to last. You should therefore plan cover arrangements based on the entire period of leave to which she is entitled.
  • If recruiting or promoting someone as temporary cover for the role, you may wish to ask them to begin a few weeks before the pregnant employee is due to start her maternity leave so that there is the opportunity for a handover. You should make it clear to the temporary cover that they are being taken on only for the period of the maternity leave and their contract/role will come to an end on the return of the employee from maternity leave.
  • The employee should let you know when she intends to start her maternity leave (usually by the 15th week before the EWC). She can choose to start this any time up to the date when the baby is born. She can also change the date on which her maternity leave starts by giving you 28 days’ notice.
  • Ask the employee to prepare handover notes and keep them updated in the weeks prior to her maternity leave. Keep in mind that employees often begin their maternity leave earlier than expected, eg because they give birth early or because they have a pregnancy-related illness within four weeks of their EWC (in which case their maternity leave will automatically start).
  1. What are the practical issues for managers when the employee is on maternity leave?
  • The employee should let you/the organisation know when the baby is actually born.
  • You should make sure the employee is kept informed of any changes to the organisation and any job opportunities that become available, and is made to feel that they are still part of the team. You are legally entitled to maintain a “reasonable” contact with the employee during maternity leave, but it is a good idea to agree the level of contact beforehand.
  • You may agree with her that she works for up to 10 days (also known as “keeping-in-touch” days) during her maternity leave period. You do not have to offer work, nor is she obliged to accept it.
  • If you need to make redundancies while the employee is pregnant or on maternity leave, you should follow the normal procedure. However, it is very important that the employee is not selected for redundancy for any reason connected to her pregnancy or childbirth. If, for example, you intend to use sickness absence as one of the redundancy selection criteria, be careful to exclude any periods of pregnancy-related illness or maternity leave from the calculations. Seek advice from a HR advisor if the role of an employee on maternity leave is potentially under threat of redundancy. Do not under any circumstances be tempted to use the restructure as an opportunity to bump the returning employee from her post.
  • The employee doesn’t need to give you notice if she is returning at the end of the maternity leave period she is entitled to (ie, 52 weeks). However, if she intends to return from maternity leave early, she should give you 8 weeks’ notice of this.
  1. What are the practical issues for managers when the employee returns?
  • Do not allow the employee to return earlier than two weeks after the birth (or four weeks if she works in a factory).
  • Remember that you must allow the employee to return to her old position unless she is returning from AML and it is not reasonably practicable for her to return to her old job. In this case she should be offered a suitable alternative role that is appropriate for her to do.
  • When the employee returns, she is entitled to terms and conditions that are no less favourable than they would have been if she had not been absent, eg she should receive any pay rises or improved terms and conditions that took place while she was away. This includes training and development and promotion opportunities.
  • Help the employee to settle in by:
  • welcoming her on her return
  • introducing her to new staff
  • setting aside time to fill her in on changes that have occurred while she has been on leave.
  • Make sure that the working environment is safe for new or breastfeeding mothers. If she is breastfeeding, you should make sure that she has access to facilities so that she can express milk or breastfeed, for example rest facilities, a refrigerator to store her milk and comfortable seating. You could also consider allowing her to take more flexible breaks so that she can express milk or breastfeed when she needs to.
  • Give proper consideration to any requests to work flexibly that she might make (see What is the right to request flexible working?).
  • If the employee is unable to return at the end of her maternity leave because she is ill, the normal sickness procedures will apply. Keep in mind that post natal depression could be classed as a disability.
  • If the employee decides not to return to work, you should ask her to confirm in writing that she is resigning.
  1. What is the right to request flexible working?

Every employee with at least 26 weeks service has a right to request flexible working. This could include a change to:

  • the hours they work
  • the times they work
  • the location at which they work (eg working from home).

There is a set procedure that you must follow if you receive a request for flexible working from one of your staff. You have a duty to consider such requests seriously. You can only refuse the request on limited grounds, for example the burden of additional costs or the effect it would have on the ability of the organisation to meet customer demand. Each request should be viewed sympathetically and objectively. The employee also has the right to appeal against a refusal to let them work flexibly. (The right to request flexible working has been extended to parents with children aged 16 or under since April 2009).

  1. Summary of maternity leave rights
Type of leave Qualifying employment period Amount of leave Whether paid
Ordinary maternity leave None 26 weeks 6 weeks x 90% earnings and 33 weeks x SMP rate per week (or 90% earnings if lower)
Additional maternity leave None Up to a further 26 weeks As per contract for remaining 19 weeks

 

  1. Summary of relevant dates for employee who is pregnant/on maternity leave

Throughout the employee’s pregnancy and maternity leave, there are a number of significant dates, for example those used to calculate the employee’s entitlement to leave:

Timeline Requirements
Pre-pregnancy Health and safety maternity risk assessment
Onset of pregnancy Immediate right of an employee to paid leave for antenatal care.
Immediate right of an employee not to be dismissed if she becomes pregnant.
Start of the 25th week of pregnancy Employee entitled to maternity leave if child is stillborn
20th week prior to EWC Employee can obtain MAT B1 certificate from midwife as proof of their pregnancy
The end of the 15th week/beginning of 14th week prior to the EWC Employee must normally give notice of intention to commence maternity leave (unless the child is born early). She can change the date by giving 28 days’ notice
11th week before the EWC Earliest week employee can start her maternity leave unless the baby is born earlier or is stillborn (from the 25th week of pregnancy onwards)
After the beginning of the 4th week prior to the expected week of childbirth Employees off sick with maternity-related sickness start maternity leave automatically
Expected week of childbirth (EWC) The date from which notification date is calculated
Actual date of childbirth The latest date the employee can begin maternity leave
Two weeks after birth (four weeks if the employee works in a factory) Compulsory maternity leave period — employee not legally allowed to work in any circumstances
26 weeks after maternity leave starts Ordinary maternity leave period ends (additional maternity leave starts if required). Automatic right of return to same job
52 weeks after maternity leave starts Additional maternity leave period ends Additional maternity leave period ends Right to return to the same or a suitable alternative job on similar terms and conditions.
Return to work No minimum gap required between pregnancies for employee to regain full entitlements
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