Overview
- Pregnant staff have comprehensive legal protections and employers must be aware of these or risk facing expensive tribunal claims.
- A pregnant employee has the right:
- not be dismissed, selected for redundancy, or subjected to any disadvantage because she is pregnant or for any reason connected with childbirth or pregnancy
- to 52 weeks' maternity leave
- to 39 weeks' statutory maternity pay (SMP)
- to a reasonable amount of paid time off work for antenatal care
- to return to work in the same job after maternity leave (or, in certain cases, to a suitable alternative job)
- to be paid normally if suspended from work on maternity grounds – unless she unreasonably refuses an offer of suitable alternative work
- to be transferred from night work to day work if her doctor says that night work is affecting her health or that of her child
- to have access to rest facilities during normal working hours if pregnant or breastfeeding
The right to take maternity leave
- All employees, regardless of length of service or hours worked, have the right to take 52 weeks’ statutory maternity leave. This consists of 26 weeks’ ordinary maternity leave (OML) and 26 weeks’ additional maternity leave (AML).
- An employee can start her statutory maternity leave at any time after the 11th week before the due date.
- Employers should assume that an employee will take the full 52-week entitlement to maternity leave - an employer is entitled to 8 weeks’ notice if she intends to return any earlier than this.
- There is a compulsory period of 2 weeks’ maternity leave starting on the day the child is born (extended to 4 weeks for factory workers).
Notification
- At least 15 weeks before her due date, a woman must notify her employer of the following: the fact that she is pregnant, the week in which her child is due, and the date on which she intends to start her maternity leave.
- The employer has 28 days to acknowledge receipt of the employee’s notice and inform the employee of the date on which her maternity leave will end.
- If an employee wants to change the start date of her maternity leave, she must give her employer at least 28 days’ notice of the new date; if this is not reasonably practicable, a shorter period of notice is allowed.
- Maternity leave may start automatically in the event of a premature birth or if an employee has a pregnancy-related illness within 4 weeks of the due date; the employee must then notify the employer as soon as possible of the date of the birth or the date the pregnancy-related absence started.
- An employer may ask a pregnant employee to provide it with a certificate from her GP or midwife confirming her due date – a form MAT B1.
Health and safety aspects
- The Management of Health and Safety at Work Regulations 1999 contain specific provisions for women of childbearing age in the workplace.
- When an employer receives written notification from an employee that she is pregnant, has given birth within the previous 6 months, or is breastfeeding, it must conduct a risk assessment to identify any risks to the employee or her baby.
- An employer must remove, reduce or control any risks. If this cannot be done, an employer must temporarily adjust the employee's working conditions and/or hours of work.
- If this is not possible an employer has 2 further choices: offer the employee suitable alternative work (at the same rate of pay), or suspend her from work on paid leave for as long as is necessary to protect her and her child's health and safety.
- New and expectant mothers may also be suspended from night work where they have a signed certificate from a registered medical practitioner or midwife stating this is necessary in the interests of their health and safety.
Rights and obligations during pregnancy and maternity leave
- A woman has the right not to be treated less favourably during her pregnancy in relation to recruitment, promotion, training and selection for redundancy.
- A woman has the right not to suffer a detriment for a reason connected to her pregnancy or maternity leave.
- It is automatically unfair to dismiss a woman if the reason (or principal reason) for the dismissal is related to her pregnancy or maternity leave.
- Employers are under a duty to protect the health and safety of all their employees and there are particular rules relating to pregnant employees.
- Pregnant employees have the right to paid time off for antenatal appointments regardless of length of service or hours worked; an employer is entitled to ask for evidence of such appointments.
- Women on maternity leave are legally entitled to all terms and conditions of employment (except those relating to remuneration) throughout their whole leave.
Keeping in touch
- A woman may work for her employer during her maternity leave for up to 10 'keeping in touch' days without bringing her maternity leave to an end.
- Any work carried out on such a keeping in touch day constitutes a day's work for these purposes.
- Employees are entitled to be paid for such work and will not lose their entitlement to maternity pay.
- Employees are not required to carry out any work during their maternity leave; thus there is no obligation on a woman to make use of these keeping in touch days.
- An employer is also entitled to make 'reasonable contact' with an employee who is absent on maternity leave.
Redundancy during maternity leave
- If an employee is dismissed by reason of redundancy during her maternity leave she will be entitled to a redundancy payment in the same way as she would have been had she not been absent. She will also continue to be entitled to her statutory maternity pay.
- A woman dismissed by reason of redundancy while on maternity leave may be able to claim automatic unfair dismissal, ordinary unfair dismissal or sex discrimination.
- If she is selected for redundancy because of her pregnancy or birth or because she is taking maternity leave, the dismissal will be automatically unfair.
- A woman who is made redundant while on maternity is entitled to be offered a suitable alternative vacancy before it is offered to any other employee and before the end of her employment under her existing contract.
Returning to work
- The expected return date is the end of the AML period, i.e. 52 weeks from the start of maternity leave. However, as the statutory entitlement to maternity pay is only 39 weeks, many women will choose to return to work before the expiry of the AML period.
- A woman who wishes to return early must give her employer at least 8 weeks’ notice of her date of return.
- An employer can only delay the employee’s return to work if she has not given sufficient notice of her request to return early.
- An employee who wishes to return later than originally indicated can change her mind but must give her employer at least 8 weeks’ notice.
- An employee who takes only ordinary maternity leave has the right to return to 'the same job in which she was employed before her absence' and she will be entitled to benefit from any pay rises which have taken effect during her absence.
- An employee who takes additional maternity leave is entitled to return to the same job, on the same terms and conditions - unless that is not reasonably practicable, in which case she is entitled to return to a suitable alternative job.
Maternity pay
- An employee is entitled to SMP if:
- she has been continuously employed for at least 26 weeks by the 15th week before the due date
- her normal weekly earnings are not less that the lower earnings level
- she gives at least 28 days’ notice (or as much as is reasonably practicable) of the date on which she intends her maternity leave to start and supplies a Form MAT B1
- she is still pregnant 11 weeks before the start of the week in which the baby is due, and she has stopped work
- Normal weekly earnings are calculated as a weekly average of the employee’s earnings during an 8-week 'relevant period'.
- The relevant period is the 8 weeks prior to the 15th week before the due date.
- SMP is payable for 39 weeks; the first 6 weeks is paid at 90% of a woman’s normal weekly earnings and the next 33 weeks is paid at a basic rate of £128.73 (from April 2012: £135.45) or the earnings-related rate, whichever is lower. SMP will be payable from the first day of statutory maternity leave.
- Statutory Maternity Allowance (at the same rate as SMP) may be available to employees who are ineligible for SMP.
- SMP cannot be reclaimed from the employee if she decides not to return to work.
- Employers can recoup all or most of the cost of SMP by making deductions from NIC and PAYE due from them.
Resources
The Policies and Documents section contains a variety of specimen letters, policies and procedures and forms covering maternity issues (subscribers only).
BIS
- Pregnancy and Work: What You Need to Know as an Employer
- Pregnancy and Work: What You Need to Know as an Employee
Business Link
Calculators
- SMP Dates - Ceridian
- Maternity Pay and Leave - Croner
- Maternity Leave - Withers LLP
- Statutory Maternity Pay - Withers LLP
- Maternity and Paternity Leave - Eversheds
CIPD
Department for Work and Pensions- A Guide to Maternity Benefits (April 2011): aimed at the employee/worker (rather than the employer)
Equality and Human Rights Commission
National Childbirth Trust
Worksmart (TUC)
Checklist
Other useful websites
Subscribers only - 
