The Equality Act 2010 protects individuals who are pregnant or have been pregnant in the past. If an employer discriminates on either basis, the employee can bring a claim before the employment tribunal.
Both employer and employee should be aware of the statutory rights and benefits available from the point an employee becomes pregnant, as well as the requisite notice periods that must be adhered to in order to claim them.
Maternity leave periods
A 26-week period of maternity leave is available from the point an employee gives birth. This is known as Ordinary Maternity Leave (OML). If an employee returns to work after this period, they are entitled to reinstatement to their prior position. An employer cannot make an employee redundant on the basis of their OML.
Beyond the initial OML period, there is a further 26-week period called Additional Maternity Leave (AML). If an employee decides to return to work after OML but during AML, if it is not reasonably practical to return them to their former post, a suitable accommodation can be offered.
An employee is entitled to both OML and AML periods from the outset of their employment, and there is no probationary period required.
Compulsory maternity leave
It is important to note that it is illegal for an employee to return to work within 2 weeks after giving birth, and neither an employer nor employee can waive this prohibition.
Statutory Maternity Pay period
Within the first 39 weeks of an OML/AML period, the employee will be entitled to Statutory Maternity Pay (SMP) from their employer. An employee must have been already working for the employer when they became pregnant in order to qualify for SMP, and they must receive the equivalent of £113 per week in pay up to the 15th week before the child is due to be born. If an employee does not fulfil this amount, they are still entitled to a number of government provided maternity benefits and allowances.
Shared Parental Leave
An employee is entitled to Shared Parental Leave (SPL), which allows an employee to replace their OML/AML period with SPL and their Statutory Maternity Pay with Statutory Shared Parental Pay (ShPP). Both partners can divide leave periods between one another.
A single parent cannot claim SPL, and both partners must have been continually working up to the 15th week prior to birth of the child. As with SMP, both partners have to meet the £113 per week equivalent pay threshold.
An employee must inform their employer that they are pregnant 15 or more weeks before their baby is due to be born. The employee must inform their employer that they are pregnant, when the child will be born and the date they anticipate commencing maternity leave. From the point an employer is aware that their employee is pregnant, the employee has a right to claim time off for antenatal care and for health and safety accommodations to be made.
If the employee is unable to give notice within this period, delay may be waived if notice is given as soon as reasonably practical.
There is a presumption that an individual will wish to take both OML and AML periods, amounting to 52 weeks. If an employee wishes to return to work before this period ends, they must provide at least 8 weeks’ notice prior to the date they anticipate doing so.
Statutory Maternity Pay (SMP)
To be entitled to SMP, an employee must provide at least 28 days’ notice prior to the date they wish to begin receiving SMP. The employer must respond to the employee within this period with notice of when they expect the employee to return to work. SMP will in most cases commence on the date the employee begins their maternity leave.
Within 15 weeks before the employee gives birth, even if the employee is at this point made redundant, they will still be entitled to claim the full 39 days SMP from their employer.
Shared Parental Leave (SPL)
If an employee wishes to take SPL, the employee must provide at least 8 weeks’ notice to their employer.
Distinction between employee and worker
For individuals who are not employees, there are weaker protections afforded. For those with worker status, unless provided for by contract, they will not be entitled to OML if they are already pregnant when they start work. However, an agency worker who has been working for 12 weeks with the same employer is entitled to paid time off for antenatal care.
Breastfeeding at work
An employee is not entitled to time off for the purpose of breastfeeding but an employer is bound by anti-discrimination law to make accommodations at work, otherwise they can expose themselves to sex discrimination claims.
Burden of proof for discrimination actions
An employee making a discrimination claim must show that they have suffered unfavourable treatment due to their pregnancy or having previously been pregnant.
In order to show treatment has been unfavourable, an individual is not required to show that the treatment was unfavourable by comparison with someone who was not or has never been pregnant.
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Contact our Pregnancy Rights Solicitors Mayfair and throughout London Today
The law surrounding maternity and parental leave entails a number of statutory deadlines and hurdles for employers to grasp in order to properly run their business. It is highly advisable to consult an employment solicitor from the outset of a business undertaking to ensure that appropriate policies are in place and that employees are fully informed of their rights.
At Lewis Nedas, our Employment Law Solicitors have over 25 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.