An employee that is pregnant or on maternity leave is given greater employment rights and protection. An employer must not discriminate against these employees, which includes a range of situations from being demoted, not being promoted or being disciplined (or even dismissed) due to the pregnancy or maternity leave. The law surrounding pregnancy and maternity leave entails a number of statutory deadlines and hurdles for employers to grasp in order to properly run their business. Our expert employment solicitors can ensure that appropriate policies are in place and that employees are fully informed of their rights as well as representing you through all the stages of a dispute.
Pregnant employees are entitled to time off work for antenatal appointments, including relaxation and parent-preparation classes.
Pregnant employees, those that have given birth in the last 6 months and breastfeeding employees must be carefully assessed by their employer to ensure there are not additional health and safety risks. The employer must do a full assessment including considering the hours that the employee is working, whether there is any risk of exposure to toxic substances, if the employee is expected to lift or carry heavy items and whether they need to stand for extended periods. If the employer identifies a risk then they must either adjust the employee’s working conditions or hours accordingly or offer alternative work that is both suitable and at the same rate of pay and terms as their original role. Where this is not possible, the employee is suspended on paid leave until it is safe for them to commence working again or their maternity leave begins. The employer must give a written explanation as to what the issue is and why it could not be overcome.
Pregnant employees that have pregnancy-related illnesses do not have an automatic right to full pay and are paid the same as with other illnesses. However, these illnesses should be recorded separately and should be used as an issue triggering a review. Where an employee is off work with a pregnancy-related illness in the four weeks before the baby is due, their maternity leave automatically starts on the following day.
An employee that has given birth is entitled to either:
- Statutory maternity pay (SMP) where they have continuously worked for one company for 26 weeks or more ending on the 15th week before the expected birth and has an average weekly earning at least equivalent to the lower earnings limit for National Insurance contributions. SMP is payable for 39 weeks at 90% for the first 6 weeks of the average weekly earnings and then 33 weeks at the SMP rate or the same rate as the first 6 weeks- whichever is lower.
- Contractual maternity pay is offered by some employers and is more than SMP (it cannot be less). Some employers have a clause to say this must be repaid if the employee does not return to work (this cannot include any SMP that they receive).
- Those that do not qualify for the above may get a maternity allowance from the Jobcentre for up to 39 weeks. They must have been employed or self-employed for 26 weeks of the 66 weeks before the expected birth. Claims can be made from 26 weeks into the pregnancy but payments do not start until 11 weeks before the baby is due. The pregnant mother needs to have earned at least £30 a week on average over any 13 of the first 26 weeks of pregnancy. The rate of pay depends on any National Insurance contributions that have been made during those 13 weeks.
Maternity leave and rights
Employees are entitled to 52 weeks maternity leave split into 26 weeks ordinary maternity leave and 26 weeks additional maternity leave. The employee must tell their employer at least 15 weeks before the due date of their baby that they are pregnant, the expected week of birth and the day they intend to start their maternity leave. They can amend the date that they are due to start maternity leave with 28 days’ notice or by mutual agreement. The employer then must write to the employee with their return date (the employer should assume the employee is taking 52 weeks leave).
Where a baby is premature then maternity leave automatically starts on the day after the birth. A baby that is stillborn after 24 weeks of pregnancy or a baby that is born alive at any point (even if the baby does not survive) means the employee is entitled to full maternity rights. Employees with premature or sick babies should be supported by their employer with appropriate workplace assistance.
Employees on maternity leave must be kept up to date on information such as changes at work and promotion opportunities. Employees can agree with their employer up to 10 keeping in touch days (KITs) during their maternity day. These are optional and the employee does not have to use them nor the employer offer them. The employee is paid for these days and the amount is agreed with the employer. Any part of the day counts towards one of these days- they can’t be split into smaller parts. An employer that works more than 10 KIT days will automatically end their maternity leave.
An employee on maternity leave will continue to accrue annual leave and this cannot be taken during maternity leave. The employee must be allowed to take it at some point after the maternity leave. After maternity leave, most employees should be allowed to return to their original job with certain provisos based on the time taken off. Those taking a full 52 weeks have to give their employer 8 weeks’ notice of their return date. Those on maternity leave can be considered for redundancy but alternative suitable work must be offered if available. The redundancy cannot be related to the pregnancy or maternity leave and must be genuine following a fair procedure.
An employee that feels they have been treated unfairly due to being pregnant or on maternity leave can raise the issue either informally, formally or via a complaint to the employment tribunal.
Contact our Pregnancy and Maternity Rights Solicitors in Mayfair and throughout London today
At Lewis Nedas, our Employment Law Solicitors have over 40 years ’ experience advising and representing national and international companies. Our Employment Lawyers have been appointed to the Office Essential Network, which is a specialist organisation aimed at assisting young start-up businesses requiring advice on employment issues, pregnancy and maternity rights.