All pregnant employees are entitled to 26 weeks of Ordinary Maternity Leave (OML) and 26 weeks of Additional Maternity Leave (AML); the right to paid leave to attend ante-natal classes; the right not to suffer a detriment on grounds of their pregnancy or childbirth; the right not to be dismissed and the right to return to work when the maternity leave has ended.
In most cases, the employee will qualify for Statutory Maternity Pay (SMP), although where this is not the case, Maternity Allowance (MA) may apply instead.
Employers must, when notified that an employee is pregnant, conduct a statutory risk assessment and take all reasonable actions to remove potential risks to the pregnant employee or their unborn child. Specific health and safety regulations extend to the period after the mother has returned to work and while they are breastfeeding and during the first 6 months after the birth of the child.
The risk assessment should firstly identify risks presented by work processes or working conditions, or physical, biological, or chemical agents. When a risk is identified by the assessment, the employer’s obligation is to take reasonable preventative or protective action to remove or reduce the risk to an acceptable level, as far as is reasonably possible.
If it becomes clear that any action would not reduce the risk, or it isn’t reasonable to expect the employer to take that action, the employer is required to consider altering the employee’s working conditions or hours of work. Alternatively, as a nearly last resort, they should consider whether it would be possible to offer the employee suitable alternative work, with ‘suitable’ taking into account the status of the post being offered, the nature of the work, the place of work, travelling time, pay, hours and working conditions.
As the very last resort and only if all other options described above have been properly considered and discounted (in full consultation with the employee) then suspension from work, for as long as is necessary to avoid the risk, is the last option. Under these circumstances, suspension must be on full pay and other benefits, unless the employee has unreasonably refused suitable alternative work offered. If a pregnant employee normally works nights and their medical advisor suggests they should not, then the employer must identify whether their role could be swapped onto days (perhaps swapping with a day worker who is happy to work nights for a period.) If it really is impossible then again (and with appropriate medical information) suspension might be the last resort.
A prudent employer would seek a medical opinion before carrying out a significant change to a pregnant employee’s role or before suspending them on grounds of medical safety. The aim of medical evidence in this context is to confirm that a genuine risk to their safety (or that of their unborn child) exists and therefore some action is justified. This won’t necessarily lead a tribunal to conclude that the action the employer chose to take was reasonable, but will help to clarify that some type of action could reasonably have been considered as necessary.
A pregnant employee will, by completing the appropriate form (e.g. MATB1), tell their employer when they will start their maternity leave and, if applicable, pay. They do not need to give notice of their return date and, unless they notify otherwise, the employer should expect them to return to work after the full ordinary and additional maternity leave period i.e. 52 weeks.
The employee may however return earlier than this (but no sooner than 2 weeks after the birth or 4 weeks in factory environments) by giving 8 weeks’ notice to the employer. During maternity leave the employee may attend the employer’s premises for up to 10 ‘keeping in touch’ (kit) days without this affecting their maternity leave or pay entitlements, but these kit days are optional, i.e. an employer cannot require they attend.
When on Ordinary Maternity Leave (OML) all terms and conditions except pay continue as normal. During Additional Maternity Leave holiday continues to accrue but certain other benefits may be removed. In practice most employers treat AML and OML identically.
As far as pay is concerned an employee is currently entitled to 39 weeks Statutory Maternity Pay (SMP) the first 6 weeks being paid at 90% of their average weekly earnings, the next 33 weeks being paid at the lower of 90% of their average weekly earnings or SMP and the remainder of the leave being unpaid. Employees not entitled to SMP will normally qualify for Maternity Allowance.
Should a redundancy situation arise that places an employee on maternity leave ‘at risk’ of redundancy they would be afforded special protection. If there is another employee who also is ‘at risk’ and a selection exercise objectively scores both employees equally, then the employee who is not pregnant or on maternity leave will be selected for redundancy.
Mothers, fathers and partners of mothers of babies due on or after 05 April 2015 are entitled to statutory shared parental leave if they meet certain requirements. The right is also available to adoptive parents of children who are placed for adoption on or after 05 April 2015. Mothers are able to return to work at any point after 2 weeks (or 4 in a factory) and share the remaining 50/48 weeks’ leave with their partner.
Typical employment law pitfalls
There are many. Most serious problems stem from the employer failing to handle return to work arrangements properly, for example by not keeping the employee’s job open. Some employers decide not to recruit a woman because she reveals she is pregnant, or even because she is of childbearing age. Attitudes to employees can sometimes change from the point an employer realises they are pregnant. On the opposite side of the coin, some employers are so cautious with pregnant employees that they allow their businesses to suffer, perhaps through tolerating high levels of non-pregnancy related absence or poor performance.
Help and support
If an employer becomes aware of the possibility of a complaint made by or relating to pregnant employees, employees on maternity leave or those recently returned to work, please contact us straight away.
If you’re thinking of outsourcing your HR, payroll or employment law needs, why not contact myHRdept? Call us on 01628 820515, email us at email@example.com to discuss your requirements, or contact us via our website and we’ll call you back.