The issue of maternity law can become a minefield for employers. Failure to respect the rights of pregnant workers can destroy relationships with key members of staff, and lead to employment tribunals costing thousands of pounds.
The recent introduction of Additional Paternity Leave, enabling new parents and adopters to split their post-natal leave between them, makes maternity a trickier area than ever.
Key conditions of leave
All working female employees are entitled to 52 weeks’ maternity leave when they give birth. This is broken down to 26 weeks’ ordinary maternity leave (OML), and 26 weeks’ additional maternity leave (AML).
The mother can begin her maternity leave during the 11th week before the baby is due (or later). If she becomes ill as a result of the pregnancy in the four weeks before her expected week of childbirth, the employer can require her to start her maternity leave, even though she may have requested for this to start at a later date.
The employee is also entitled to statutory maternity pay, provided she has been:
- employed by the same employer continuously for at least 26 weeks, up to the 15th week before the week her baby is due;
- earning an average of at least £90 a week before tax.
The rate of pay depends on the employee’s normal weekly earnings; the first six weeks are paid at 90% of her normal weekly pay and the remaining 33 weeks are paid at the prescribed rate which is currently £128.73 per week.
If you are an employer, you have the right to recover all, or most, of payable statutory maternity pay from HMRC; 92% is the lowest you’ll get. It’s worth nothing that you have the option of providing a higher rate of pay, or extending the period of pay, for a woman on maternity leave if you so choose – but this is not recoverable.
During the period of leave, the employee is entitled to work 10 days without this affecting her statutory maternity pay. These are known as ‘keeping in touch days’ and are designed to keep the new mum abreast of developments within her company during her absence.
Returning to work
A woman’s employment rights are protected, and she is entitled to return to her old job, at her old rate of pay, and is entitled to no less favourable terms, if she returns before the end of ordinary maternity leave.
If she is returning after additional maternity leave has been taken, and it is not practical for her to return to the same job, the employer merely has to ensure that the new job is suitable and appropriate.
If a redundancy situation does arise during maternity leave, employers and employees are advised to seek legal advice. A woman on maternity leave has added protection which the employer will need to be aware of.
Holiday rights remain unchanged during the post-childbirth absence; statutory paid annual leave, amounting to 5.6 weeks, remains in place during both ordinary maternity leave and additional maternity leave.
Additional leave - changes
Under the changes introduced in April 2011, new and adoptive parents can split their additional leave entitlement. The early weeks of leave remain reserved for the mother or main adopter; the partner can only begin to utilise the additional leave once the baby is 20 weeks old.
The father or secondary adopter can take any amount of the additional entitlement, up to the full 26 weeks, provided this person has a specified relationship with the adopter, mother or the child; has responsibility for the child’s upbringing; and is employed continuously for the required period. Additionally, the mother or adopter must have returned to work without exhausting their right to statutory leave.
Discrimination and unfair dismissal
An employee may also make a claim for discrimination if, as a direct consequence of her maternity leave, she is dismissed or treated less favourably. For example, she is denied career enhancements such as pay rises, promotion and bonuses.
If an employer dismisses a woman, selects her for redundancy or opts not to renew her fixed-term contract, principally because of her pregnancy, this is automatically classed as unfair dismissal.
The Directgov website provides comprehensive information on maternity leave, relevant to both employers and employees. Companies such as Martin Searle solicitors also provide factsheets on discrimination, and how to avoid it.