Maternity rights in employment

There are a number of different aspects to the maternity rights that are extended to pregnant women in the workplace, from the action that should be taken by an employer once he or she is notified of a pregnancy, to entitlements to maternity leave and pay.  Whilst there are some general principles set out below that provide a structure for maternity rights, the differing circumstances of each case can complicate matters significantly so where any issues arise, or where there are circumstances that require a more bespoke approach, it is wise to take specific legal advice.

Before the birth

It is important for a pregnant employee to notify her employer of the pregnancy in good time.  This should be done by the 15th week before the due date and should also indicate when an employee intends to start maternity leave and when the baby is due. There is no need to give a maternity leave end date.

Pregnancy entitles a contracted female employee to take time out for antenatal appointments that have been recommended by a medical professional. (See ‘Health and safety issues for pregnant women in the workplace‘)

There is also a requirement where an employer is notified of a pregnancy for that employer to appraise the pregnant employee’s working arrangements or workplace to see if there are any risks to a pregnant person.  Where any risks exist, an employer should try and eliminate these, for example by providing a different role, or different working conditions (such as altered working hours).  This requirement only comes into play once an employer has been notified of a pregnancy so it is in an employee’s interest to notify an employer as soon as possible in order to guarantee the safety of the pregnancy at work. There is also a requirement for an employer to carry out a health and safety assessment when a woman returns to work after maternity leave.

Pregnancy is not a legitimate reason for an employee to be dismissed and employment rights should be protected during this time.

After the birth

Maternity leave

Every pregnant women that has a child is entitled to maternity leave.  This will be the case regardless of the woman’s contracted hours or how long she has been in her role.  The basic entitlement to maternity leave is Ordinary Maternity Leave which is 26 weeks long and can be started up to eleven weeks before the due date, or when the woman has a pregnancy related absence from work.  Women are entitled to a further 26 weeks Additional Maternity Leave on the same basis as the Ordinary Maternity Leave.

What to bear in mind with respect to maternity leave:

– For births after 3 April 2011, outstanding maternity leave can be transferred to a baby’s father. (For more information see Paternity.)

– Any annual holiday entitlement that is not taken before maternity leave that lasts twelve months may be lost.

– For mothers who want to take more maternity leave there is the option of using an annual holiday entitlement or asking for parent leave (unpaid).

Maternity pay

In terms of pay during maternity leave, this will depend on the employee’s contract, or on her entitlement to statutory maternity pay.  An employee who has worked for her employer for 26 weeks prior to the15th week before the due date and earns more than the Lower Earnings Limit for National Insurance contributions (£107) is entitled to statutory maternity pay.  If the employee leaves or is dismissed after that date there is no longer an entitlement to statutory maternity pay.

Statutory maternity pay is calculated on the basis of the earnings (including bonuses) paid during the eight weeks before the15th week before the due date. It usually begins at some point between the eleventh week before a child is due and the day after the birth. It is structured as follows:

First six months – 90% of average pay

Next 33 weeks – £135.45 per week (this is the basic rate), or 90% of average pay if that is less.

Last 3 months – unpaid

Employers claim a proportion of statutory maternity pay from the state – small employers can claim all of it.

Where statutory maternity pay is not due – for example where a woman works as a freelancer or has left a job since becoming pregnant – there may be an entitlement to a Maternity Allowance at £135.45 a week, or 90% of average pay if that is less, for 39 weeks.

During maternity leave

Other than the two weeks after a child is born, an employee on maternity leave can agree to work for up to ten days whilst on maternity leave, without losing entitlement to maternity pay or bringing the leave to an end.  An employer can also maintain ‘reasonable contact’ during an employee’s maternity leave, without this ending maternity leave.

Going back to work

There are various notice requirements for returning to work early during maternity leave, but an employee does not have to give a return date to an employer during the 12 months entitlement in advance.

Before, during or after Ordinary Maternity Leave

To return to work before the end of Ordinary Maternity Leave 28 days notice is required.

An employee returning to work after Ordinary Maternity Leave has the right to come back to exactly the same job

Before, during or after Additional Maternity Leave

To return to work early after Additional Maternity Leave, eight weeks notice is required.

Where notice is not given, an employer is entitled to make an employee wait eight weeks to come back to work.

An employee returning to work after Additional Maternity Leave is entitled to return to the same job, or if that is not practically realistic, a position where the terms are conditions are no less favourable and the job is appropriate.  There is an automatic claim for unfair dismissal where these guidelines are not followed, no matter how small the employer.

Flexible pay

An employee with 26 weeks service may request flexible working, or a reduction in hours. The right to request flexible pay and conditions is not a right to those flexible pay and conditions and an employer can refuse a request where there are good business reasons for this. The procedure for requesting flexible pay and conditions can be time consuming and should be started as soon as possible.

Not returning to work

Contractual notice must be given where an employee does not wish to return to work at the end of maternity leave.  As would be the case in any notice situation, the employee is entitled to payment for accrued outstanding annual leave.  Although there is no requirement to repay Statutory Maternity Pay, an employment contract that provides enhanced maternity rights may state that these must be repaid where an employee doesn’t return from maternity leave.