Maternity - What is the Law?

Following our recent bulletin on the rights and responsibilities relating to pregnancy, in this article we are focusing on maternity leave and returning to work following a period of maternity.

Employees that become pregnant enter what is known as a ‘protected period’. This period (as the name suggests) provides the employee with various enhanced rights during both their pregnancy and maternity leave periods. The protected period ends at the end of the additional maternity leave period (see below), or at an earlier date if the employee returns to work prior to this.

Maternity Leave

What are the three types of maternity leave?

- Compulsory. This is for two weeks starting with the day childbirth occurs and must be taken by all employees.

- Ordinary. This is for 26 weeks and is available to all employees regardless of their length of service, as long as they have given birth and provided the required notification to their employer.

- Additional. This is for a further 26 weeks and as with Ordinary, is available to all employees regardless of their length of service.

The employee is able to choose the intended start date of their maternity leave, provided it is not before the start of the 11th week before her expected week of childbirth (EWC) and subject to the employee giving the employer the correct notice. The intended date may of course change, and maternity leave may start automatically if the employee gives birth prematurely or is absent for a pregnancy related reason after the 4th week before the EWC.

Maternity Pay

As well as the right to take maternity leave, if an employee has at least 26 weeks’ continuous service with an employer up to and including the 15th week before the EWC and is earning more than £120 on average per week in the 8 weeks prior to the 15th week before EWC, she will be entitled to statutory maternity pay (SMP).

Statutory maternity pay will pay the employee 90% of their average earnings for the first 6 weeks and then a further 33 weeks at the statutory rate, currently £151.97.

Of course, many employers may opt to ‘top up’/enhance this amount and pay additional sums over and above the statutory requirement. This is often a contractual requirement that the employer agrees to pay to employees who qualify. The payment of these additional sums can often be subject to a clawback clause where the additional amounts require repaying if the employee chooses not to return to work after maternity leave or resigns within a short time of doing so. However, such clauses do need to be carefully drafted by employers to ensure that they are enforceable, and the sums can legitimately be reclaimed.

Employers with National Insurance contributions below a certain level may be able to qualify for ‘small employers’ relief’ where they are able to recover 100% of SMP plus an additional compensatory amount relating to the National Insurance Payments on that amount.

What rights do employees have during maternity leave?

Except for the right to remuneration (where they may instead be on SMP), an employee on maternity leave is entitled to the benefit of the terms and conditions of employment that would have applied to her had she not been absent. This will include the provision of benefits such as accrual of annual leave, medical insurance, and the use of a company car.

The employee’s continuance of service will also continue to accrue throughout this period and she would be eligible for any pay rises that would have occurred during this time. An employee should also be notified of any vacancies which arise during her maternity leave to avoid any claims of discrimination. Likewise, an employee is still bound by their terms and conditions of employment whilst on maternity leave, except those that are inconsistent with being on maternity leave such as the requirement to attend the office.

Bonuses may be payable to employees on maternity leave and employers may face claims for discrimination and/or equal pay if they fail to pay a bonus that is properly due to the employee.

An employer is under a duty to remain in touch with their employees on maternity leave, including the provision of ‘Keeping in touch’ (KIT) days as well as a requirement to make ‘reasonable contact’ which is set out in the maternity regulations.

Up to 10 KIT days can be taken. These enable the employee to provide work for the employer, but they do not bring the maternity leave period to an end. KIT days enable an employee to work, stay in touch with the business and to be paid at a rate agreed (usually at the employee’s full rate).

Returning to work after maternity leave

The most likely issues to arise relating to maternity are upon the employee returning to the workplace.

If an employee has only taken ordinary maternity leave, her terms of employment upon her return must be the same as or not less favourable than they would have been had she not been absent (unless there is a redundancy situation).

If the employee takes a period of additional maternity leave, she is generally entitled to return to the same job on the same terms and conditions as if she had not been absent, unless there is some reason (not redundancy) why it is not reasonably practicable for the employer to permit her to do so.

Although this does give an employer more flexibility when dealing with employees returning from a period of additional maternity leave, it does not mean that an employee taking additional maternity leave automatically loses her right to return to her old job and is only entitled to return to a suitable alternative role. If such a decision is challenged by the employee, the onus will be on the employer to demonstrate that it is not reasonably practicable for her to return to avoid a potential claim. This applies no matter the size of the employer.

Considering the purpose of the maternity leave regulations is to protect women who are more likely to find themselves in a more vulnerable employment position following their return to work, any failure by the employer to adhere to these regulations can have serious consequences with potential discrimination and automatic unfair dismissal claims being raised by the employee.

Flexible Working Requests

When returning from maternity leave an employee may also decide to make a formal request to work part time or adjust her work pattern. An employer is obliged to consider this carefully and seriously and provide one or more of eight specific business reasons if rejecting the request.

Employers should be live to the possibility of a claim before the Employment Tribunal if they fail to deal with a request under the Flexible Working Regulations appropriately. Claims for indirect sex discrimination are also commonplace, with these two claims often being pleaded together arising from the same set of circumstances. Whilst the employer may feel well covered in the reasons given for rejecting a request under the regulations, they may find that they fall foul of the discrimination legislation.

Dismissal due to Maternity Leave

Employers will be all too aware of the need to deal carefully with issues relating to both pregnancy and maternity. If an employee argues the reason or principal reason for dismissal or selection for redundancy is due to pregnancy or maternity, they may decide to bring a claim for automatic unfair dismissal as well as claims of pregnancy and maternity discrimination. Likewise, the employee should not suffer a detriment because she is pregnant or on maternity leave.

In one of the few examples of lawful discrimination, the Maternity and Parental Leave etc Regulations give employees who are on maternity leave and are placed at risk of redundancy the right to be prioritised for any suitable alternative employment over other employees who are also at risk. Failure to do this by an employer could lead to a claim of automatic unfair dismissal.

If a disciplinary issue comes to light whilst an employee is on maternity leave, or it becomes necessary to make an employee on maternity leave redundant, the employer would be well advised to seek appropriate legal advice before acting to fully understand the risks (there will be some) and the options available to them.

Should you require any assistance regarding an employment issue relating to maternity leave, please get in touch to find out more about how we may be able to help.

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