Legal Article - Employment Law

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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