Legal Article - Employment Law

Employers Responsibilities to Pregnant Employees

The rules and regulations surrounding Maternity and Paternity leave are vast and employers must be mindful of this during every stage of the employment process.

The legislation undergoes regular changes and amendments and it is essential for employers to ensure they are meeting the outlined regulations to prevent breaching their employee's rights.

Maternity Leave Entitlement

Maternity Leave Entitlement

Women have the right to paid time-off for antenatal care, which includes time-off to attend parentcraft classes.

All female employees, irrespective of hours of work or length of service, have the right to 26 weeks’ ordinary maternity leave (OML). Those with one years’ service at the beginning of the 11th week before their baby is due (i.e. expected week of confinement - EWC) are entitled to delay their return to work until the end of the 29th week after the week of their baby’s birth (counting from the start of the week the baby was born). This is called additional maternity leave (AML) which can be an extra 26 weeks.

Maternity pay is provided for 39 weeks.

In addition, it is illegal to employ a woman in a workshop or factory within four weeks of her giving birth. Women who work for more than one employer will have separate maternity rights in relation to each.

Beginning Maternity Leave

Beginning Maternity Leave

A woman can normally decide when she begins her statutory maternity leave provided it is not earlier than the 11th week before the EWC. It can be anytime up to the EWC, unless she is absent from work wholly or partly because of pregnancy or childbirth after the beginning of the sixth week before the EWC. In this circumstance the maternity leave begins automatically, on the first day of absence following the beginning of the sixth week before the expected week of childbirth, whether or not the woman has given her employer the date when she wants to begin her maternity leave.

To preserve her rights to maternity leave, certain notice requirements must be met. The employee must notify her employer of the date on which she intends her leave to begin at least 21 days before that date, or, if that is not reasonably practicable, as soon as is reasonably practicable.
The date cannot be before the beginning of the 11th week before the EWC. The notice must be in writing if the employer so requests. The 21 days notice is not required where maternity leave is due to a pregnancy related absence in the six weeks before the EWC, or the birth of the baby.

In these circumstances, the employee must notify the employer as soon as is reasonably practicable.

In addition, the employee must inform her employer, at least 21 days before her leave begins or, if that is not reasonably practicable, as soon as is reasonably practicable, that she is pregnant and give her EWC. If the baby has already been born, its date of birth should be given instead of the EWC. This notice must be in writing. If the employer requests it, the employee must produce a certificate from a doctor or midwife giving her EWC (form MAT B1 is normally used).

For additional maternity leave the employer is entitled to ask, no earlier than 21 days before the end of the 26 week maternity leave period, for written confirmation that she intends to return to work.

This must be provided within 2l days of receiving the employer’s request, or as soon as is reasonably practicable. If she does not, she does not lose her right to return to work after the additional maternity absence, but the employer can take disciplinary action against her.
When the employer makes the request about returning to work, he/she must also give a written statement warning the women of the consequences of failing to reply within 21 days and explaining how she can determine the date on which the AML period will end.

Returning to Work after Maternity Leave

Returning to Work after Maternity Leave

Women returning from the 26-week maternity leave have the right to return to employment with the same terms and conditions (or any new ones agreed for her category of job since the leave began). They do not have to give notice of return and can just come back to work on the first working day following the end of the leave period.

She can only extend the 26 weeks if the baby has not yet been born, or she is prohibited by statute from returning. If she wishes to return before the 18 weeks’ period is over she has to give at least 21 days notice of the date she intends to return.

If no notice is given, or less than 21 days notice is given, the employer can postpone her return until 21 days notice has been given, but not beyond the end of the 18-week period.

Women with the right to additional maternity leave (i.e. 29 weeks after the beginning of the week in which the baby was born) can still return after the 26 week period or at the end of the 29 weeks as described above.

To retain her right to return before the end of the longer period, however, she must give her employer in writing notice of the day on which she proposes to return. This notice must be given at least 21 days before that date otherwise the employer can postpone her return for at least 21 days.

If the employee cannot return to work at the end of the additional maternity leave because of illness or some other reason, then the normal company rules apply e.g. on sick leave, extended holidays etc.

On return, the employee has the right to return to work in a position originally held or one that is a suitable alternative in terms of pay, conditions and benefits and promotional opportunities. 

Also, her seniority, pension rights and similar rights that depend on continuity of service are retained. If she worked full-time prior to her maternity leave, she does not have a right to return as a part-time employee.

However, a refusal to allow her to work different hours may amount to indirect sex or marital discrimination. Whether the employer acts unreasonably in refusing her request to work part-time will depend upon such factors as:
• The size and resources of the employer

• The type of work the employee does e.g. costly to train, or a very technical job

• Any restraints on the way the work is organised e.g. are such options as jobsharing, flexible hours and working from home, possible

• What efforts the employer has made to accommodate the employee’s request e.g. varying training arrangements
• Whether the requirement for full-time work corresponds to a real need of the business, is appropriate with a view to achieving that objective, and is necessary to that end
• Whether it raises genuine supervisory or disciplinary concerns

• The need to maintain administrative efficiency.

Preventing the Return to Work

Preventing the Return to Work

If an employee who is entitled to return to work is prevented by her employers from doing so, this will be regarded as an unfair dismissal unless:

• her original job was no longer available because of redundancy and there was no suitable alternative work available which could be offered her;

• it was not reasonably practicable (on grounds other than redundancy) for her to be taken back in her original job and that the employer (or an associate employer) had offered her suitable alternative employment which she had either accepted or unreasonably refused; or

• it was not reasonably practicable for her to be taken back in her original job or to be offered suitable alternative employment and that the employer (together with any associated employers) employed only five or fewer people (including the employee herself) at the point when her maternity leave period ended and her additional maternity absence period began.

Paternity Leave Entitlement

Paternity Leave Entitlement

New fathers are entitled to 2 weeks paternity leave once their child has been born. They are paid at the statutory rate of £128.73 per week or 90% of their gross weekly earnings, whichever is lower. As with Maternity pay this is reclaimable in part from the Government. It is now referred to as Ordinary Paternity Leave (OPL) as the rights of expectant parents have recently been extended.

In order to qualify for OPL, applicants must be earning over £102 per week before tax deductions. Those eligible for OPL are those whose partner has just given birth of have just adopted a child and they are either the biological father of are to play a primary role in the child’s upbringing.

OPL does apply to same sex couples as long as they are the partner of the person having the baby and resides with them at the time of the birth or adoption. Those who qualify for OPL must have accrued a minimum of 26 weeks continuous service with the employer 15 weeks prior to the EWC.

If the employee is a contract / fixed term worker and their contract ends prior to the EWC then they will lose their entitlement unless they are re-employed under an associated company.

Employers must be notified no later than 15 weeks, prior to EWC, of the employees intention to take OPL. Employees must stipulate the babies due date, when they wish to leave to begin OPL and if they wish to take 1 or 2 weeks leave. Unlike with Maternity leave, employees are not obligate to produce documents to verify the pregnancy.

The rules relating to adoption differ slightly. Employees only have to give 7 days notice of OPL from when they are told they are going to be adopting the child.
An employee must take OPL in blocks of one week, they cannot use the two weeks as 14 one off days. If an employee chooses only to use 1 of the 2 weeks, they will not be able to use the other week at another time.

Employees have the choice as to whether they start their OPL on the day of the birth; this will require flexibility from employers as the baby could arrive early or late. An employee can also choose a date and begin the OPL regardless of when the birth is. OPL must be taken within 56 days of the child being born or they will lose their entitlement.

As with Maternity leave, employees must be able to return to work under the same conditions under which they left. They are also protected from dismissal, discrimination and redundancy selection.

Under the Additional Paternity Leave 2010 act, expectant parents have been given extended rights to time away from work to spend with their new child. This is known as Additional Paternity Leave (APL).
This right is extended to all expectant fathers of either new born or adopted children after the 3rd April 2011.

The notification process is the same as OPL but employees are only required to give 8 weeks notice prior to their leaving date not the usual 15. Employees must also provide written notification stating that they are the child’s primary care giver and this is the reason or undertaking APL.

The payment of Additional Statutory Paternity Pay (ASPP) is the same as OPL and SMP. Payment for ASPP begins no earlier than 20 weeks after the date of the child’s birth and runs for the same period of time as SMP.

The Fallback Model Scheme

The Fallback Model Scheme

An employer can negotiate a collective agreement with an independent Trade Union, or a workforce or individual agreement with their employees on the “mechanics” of the scheme i.e. on how leave may be taken, the notice to be given by the employee and postponement provisions. If there is no local agreement, the law provides a fallback scheme which must be followed. The provisions are as described below.

Leave may be taken in blocks of one-week minimum (except for parents of disabled children) up to a maximum period of 4 weeks in any one year for each child.

The employee must give at least 21 days notice of taking leave, with start and finishing dates. The notice must specify the exact day on which parental leave will commence.
There is an exception to this requirement in respect of prospective fathers who want to take leave immediately following the birth of their child and of adoptive parents who want their leave to commence immediately a child is placed with them. In those circumstances it is the expected week of birth, or placement in the case of adoption, that must be given to the employer.

The employer can postpone leave where the needs of the business or the quality of a service make this necessary, taking into account the size of the firm or organisation.

Leave can be postponed to an agreed date, or to a suitable future period but cannot be postponed for more than six months. The dates of leave taken immediately after the birth of the child, or placement with the family for adoption, cannot be postponed by the employer.
There is no statutory requirement to keep records.

Good Practice for Employers: Pregnant Employees

Good Practice for Employers: Pregnant Employees

To confirm that the employee is pregnant, the employer should insist that she produces a certificate from a registered medical practitioner or registered midwife stating the expected week of childbirth.

All employees involved in recruitment should be informed not to refuse employment to anyone who is pregnant, or of childbirth age, simply for that reason.

Managers etc, should also be informed that no pregnant employee, or one on maternity leave, should be dismissed, unless there is a valid, easily demonstrable reason for terminating employment that has nothing whatsoever to do with her being pregnant.

If there are health and safety concerns about her continued employment, again no dismissal should take place. Instead, she should be either suspended on full pay, or found some suitable alternative work.
The employer must maintain all contractual benefits, such as private health insurance, company car for private use, the accrual of holiday entitlement etc.

Remuneration, however, is excluded. Further, even if she loses her right to return for not complying with the statutory requirements, her contract still exists and if the employer refuses to allow her to return this could be unfair dismissal.

Due to the complexity of the law it may help both parties if the employer explains to a pregnant employee what are her legal rights and obligations before maternity leave begins.

She should be told about the need for a written statement to be given to the employer at least 21 days before she wishes to start her maternity leave. This statement should contain the following information:

• she is pregnant
• the expected week of the birth (or if the baby is born, the date of birth)
• the date she wishes her maternity leave to start
The employer should also explain to those entitled to additional leave, that before the employee can exercise her right to return early she must give a written notice to her employer at least 21 days before the day she proposes to return.

It is good practice for the employer to explain before the maternity leave begins, whether it is for the ordinary or additional period, that she should notify the employer as soon as she is aware that she will not be able to return on the due date and unless she complies strictly with the legal requirements she will lose her right to return.

If the contract of employment continues through the additional leave period and the employee does not comply with the statutory requirements, the mere failure to return does not in itself end the contract. It must be shown that the employee intended the failure to return to end the contract.

The employer should write to her to ask why she has not returned and to say that her employment will be terminated unless she has a satisfactory explanation as to why she did  not return within the legal time periods. If no satisfactory explanation is forthcoming then a fair dismissal could take place.

Published: 27 May 2011


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