Maternity Rights

Introduction

For employees whose baby is born after lst April 2007 new regulations provide minimum maternity rights. Some employees may have contractual rights more generous than the statutory entitlement and always check your contract of employment to see whether this is the case.

Statutory maternity rights apply to employees and different considerations may arise to self employed mothers and agency workers.

Before the baby is born

Antenatal appointments

All pregnant employees have an entitlement to paid time off for ante-natal care whether they work full or part time and whether employed on a temporary or permanent basis. The right arises irrespective of the size of the employers business. The appointment must, however, have been made on the advice of a registered medical practitioner, registered midwife or registered health visitor.

Notice

Your employer should be notified :-

• of your pregnancy;
• of the date your baby is due ; and
• of the date you intend to commence maternity leave.

Such notification must be provided to your employer by the fifteenth week before your baby is due to be born to enable you to qualify for your maternity entitlement.

Your employer is entitled to request written proof of pregnancy and is not obliged to perform a specific risk assessment until written notification of pregnancy is received.

Risk assessment

Once your employer has been notified of your pregnancy a formal assessment of work place risks should be undertaken and any such risks found to be in existence to your health or safety or that of your baby should be avoided. Where the risk cannot be avoided by your employer taking reasonable action your working conditions or hours of work should be altered if it is reasonable to do so if such measures would avoid the risk. If doing so would not avoid the risk you should be suspended from work on full pay for as long as is necessary to avoid the risk although where suitable alternative work is available you have the right to be offered that work before being suspended on maternity grounds. However, suspension (on full pay) on maternity grounds will potentially be more advantageous to you than sick leave. Taking pregnancy related sick leave may affect entitlement to sick pay and/or to statutory maternity pay as well as being recorded on your sickness record.

The risk assessment should be specific to your circumstances. It should include a review of your work station and the physical layout of your work place together with your working hours and workload. This will include a review of a variety of factors including-:

- hours/times of work

- mental and physical tiredness

- manual handling of loads

- movement and posture

- shock/vibration

- traveliing requirements

- extremes of temperature (whether hot or cold)

- physical, chemical or biological agents that may risk your health or that of your baby

Your employer has an obligation to continually review the risk assessment whilst you are pregnant and to conduct a further review on your return to work.

 

 

Maternity leave

An entitlement exists to a maximum of 52 weeks maternity leave regardless of your length of service. Different contractual rights exist between the first six months of maternity leave (ordinary maternity leave – OML) and the second six months (additional maternity leave – AML) and slightly different arrangements exist with regard to returning to work after OML and AML.

You can choose when to start OML although it cannot be earlier than the eleventh week before the expected week your baby is due to be born or later than the day following the actual date of birth.

During OML you have an entitlement to continue to receive all contractual benefits (except salary) but during AML only statutory annual leave (currently twenty days per annum) continues to accrue. This means, for example, that if you have any entitlement to a company car this continues during OML but not during AML.

“Keeping in touch” days

The new Regulations introduced “keeping in touch” days making provision for an employee to do up to ten days work for her employer during maternity leave without losing entitlement to statutory maternity payments or bringing maternity leave to an end. These days cannot be taken during the two weeks immediately following the birth of your baby. Any work so provided does not extend the statutory maternity leave period. There is no obligation upon you to carry out such work and it must be performed by agreement between employer and employee. Any dismissal of an employee for a refusal to work “keeping in touch” days will be automatically unfair.

The new regulations also make it clear that reasonable contact between employer and employee is permitted during maternity leave.

Returning to work after maternity leave

If you intend to take the full twelve months maternity leave there is no obligation to notify your employer that you are returning to work at the end of that period. If, however, it is your intention to return to work early you must give your employer eight weeks notice of the date on which you intend to return. If you fail to do so your employer can postpone your early return to work by eight weeks although it cannot be postponed to a date after the end of your maternity leave period. If, after giving notice, you wished to return to work earlier than the date which you had first indicated you must still give a minimum eight weeks notice of the date on which you now intend to return.

Following OML you are entitled to return to the same job that you carried out before maternity leave began. After AML you have a similar entitlement to return to the same job but, if this is not reasonably practicable, to a suitable job on terms and conditions which are no less favourable.

Flexible Working

All employees who are parents of children under the age of six, or disabled children under eighteen, have a right to request a change to their hours of work, times of work or place of work. It is not, however, an absolute entitlement to work flexibly but rather a statutory right to ask your employer for flexible working and which thenrequires your employer to put into effect a set of procedures with which it must comply in order to consider the request for flexible working. The initial onus is upon you to set out your proposals for flexible working by way of changes to your terms and conditions of employment in a formal application (a standard form exists upon which the request can be made) upon receipt of which your employer should invite you to a meeting within 28 days unless your proposals are accepted in writing. Within 14 days of any such meeting your employer should notify you of the decision and if the request is refused the grounds for refusal must be given to you in writing with "sufficient explanation" as to why those grounds are stated to apply. An appeal procedure also exists.

 Bonuses and Maternity Leave

Difficult considerations arise as to when employees on maternity leave have entitlement to bonuses. Often decisions turn on the wording of the bonus scheme, whether the bonus is contractual or discretionary and whether the bonus is "remuneration" as for the purposes of maternity legislation women are not entitled to remuneration in the form of "wages or salary" during OML.

In general terms-:

- if a bonus is paid retrospectively for work done then an employee cannot refuse to pay simply because you are on maternity leave at the date payment is due.

- a contractual bonus can be subject to a pro-rata reduction in respect of periods of OML and AML but not the two week compulsory maternity leave period or any period of time when you were actually at work.

- bonuses are often stated to be paid at the discretion of the employer and not to be guaranteed. Such a bonus is non-contractual but it may be arguable that failure to pay a discretionary non-contractual bonus or to reduce that bonus for a woman on maternity leave is sex discrimination.

Pregnancy, Maternity Issues and Sex Discrimination

Examples of actions taken by employers found to have amounted to sex discrimination-:

- a failure by an employer to carry out a specific risk assessment following notification of the employee's pregnancy and causing her to resign - direct sex discrimination and constructive dismissal

- an insistence by an employer for a pregnant employee to work full time causing the employee to resign - direct sex discrimination and constructive dismissal.

- an employer's refusal to extend the temporary contract of an employee because of morning sickness - direct sex discrimination

- selection for redundancy because of pregnancy - automatically unfair dismissal and sex discrimination

- demotion of an employee after notifying her employer of her pregnancy - sex discrimination

- a requirement for an employee to work set hours of work without evidence of why this was considered necessary - sex discrimination

- a refusal of a request for flexible working because an employer felt it would encourage other similar requests or would set a precedent - indirect sex discrimination.

There is no cap on discrimination compensation awards made by Employment Tribunals who can also make an order requiring an employer to remove the adverse impact of any discrimination found to have effected the employee eg by granting a request for flexible working that has been rejected.

The content of this article is intended for general information purposes only and should not be construed as legal advice on any specific facts or circumstances.

For further advice on the subject please contact-:

Mark Robinson

Partner

markrobinson@hhlegal.co.uk

or

Judith Bond

Partner

judithbond@hhlegal.co.uk

Telephone 0800 371 407