For legal advice on pregnancy and maternity rights, contact Cambridge Legal on 01223 776200 or email enquiries@cambridgelegal.co.uk. We are specialist Cambridge employment lawyers covering the UK. Without support from employment solicitors pregnancy and maternity rights are often misunderstood.
Employment law protections for women based on pregnancy and maternity are well established and powerful but underused.
A 2005 report by the Equal Opportunities Commission described the level of pregnancy and maternity discrimination in the workplace as “appalling“. They estimated that almost half of the 440,000 women who are pregnant each year in Great Britain experience disadvantage at work as a result. Around 30,000 are annually forced out of their jobs. The report also estimated that fewer than 1 in 20 women sought advice. Only 3% who lost their job were expected to bring an employment tribunal claim.
Without advice from specialist employment solicitors many women lack legal support and suffer unnecessarily. They don’t claim compensation to which they are entitled.
The Women and Equalities Committee report in August 2016 concluded there had been a shocking increase in pregnancy and maternity discrimination:
“The arrival of a new baby puts family finances under extreme pressure yet, despite this, thousands of expectant and new mothers have no choice but to leave their work because of concerns about the safety of their child or pregnancy discrimination. Shockingly this figure has almost doubled in the last decade, now standing at 54,000.”
Our experience is that employment tribunals are very sympathetic to women who have been mistreated or suffered discrimination because of pregnancy and maternity.
Jargon
This article refers to the following commonly used terms.
protected period: this begins with conception and ends at the end of the woman’s statutory maternity leave period or, if earlier, when she returns to work.
EWC: expected week of childbirth. This begins at midnight between Saturday and Sunday in the week in which it is expected that childbirth will occur.
KIT days: keeping in touch days are days of work or training that a woman on maternity leave may choose to take. The maximum permissible is 10 days’ work during statutory maternity leave.
OML: ordinary maternity leave is the first 26 weeks of statutory maternity leave. This includes a compulsory leave period of two weeks after childbirth.
AML: additional maternity leave starts on the day after the expiry of ordinary maternity leave and continues for 26 weeks.
Dismissal
It’s automatically unfair to dismiss a female employee or select her for redundancy because of her pregnancy or maternity. Our article ‘Dismissal’ explains automatic unfair dismissal. This is where an employee can claim for unfair dismissal without having worked for the minimum qualifying period of two years.
The reasons leading to automatic unfair dismissal are those connected with:
- the woman’s pregnancy or the fact that she has given birth where the detrimental act takes place during the ordinary or additional maternity leave period, or in the case of dismissal, where it ends the ordinary or additional maternity leave period
- the fact that the woman took or sought to take the benefits of ordinary or additional maternity leave
- the fact that the woman failed to return after maternity leave when the employer had not notified her of her return date or because the she undertook or refused to work on the keeping in touch (“KIT”) days
- a requirement or recommendations for a health and safety suspension
- if the woman is made redundant during the ordinary or additional maternity leave period and not offered any existing suitable alternative vacancy.
As an alternative to automatic unfair dismissal where the above circumstances do not apply, a woman can claim ordinary unfair dismissal if she has been employed for two years.
If a woman is dismissed while pregnant or at the end of her maternity leave she is entitled to written reasons for her dismissal.
Pregnancy and maternity discrimination
It is unlawful to treat a woman unfavourably because of her pregnancy or because of a pregnancy related illness. This applies where the unfavourable treatment or the decision to carry it out is made during the protected period. All that has to be shown is that the discrimination is because of her pregnancy.
For example, a sick pay scheme that excluded pregnancy related illness would be discriminatory.
Treating a woman unfavourably due to her pregnancy at any time during her protected period or making a decision during this period which treated her unfavourably after the protected period will be pregnancy discrimination. If the unfavourable treatment occurs after the end of the employee’s protected period it will instead amount to sex discrimination.
Time off for antenatal care
Employers can’t unreasonably refuse time off during working hours for a woman to attend an appointment for antenatal care made on the advice of a medical practitioner, registered midwife or registered health visitor. An employer can require the woman to produce a certificate confirming her pregnancy and a document proving that the appointment has been made for all antenatal appointments apart from the first. Time off for antenatal care must be fully paid. Unreasonably refusing to allow time off or not paying for this is unlawful. The woman has three months from the date of her antenatal appointment to bring an employment tribunal claim.
Maternity leave
All female employees, regardless of their length of service, are entitled to 12 months’ statutory maternity leave made up of 26 weeks OML and a further 26 weeks ADL. There is also a short period of two weeks’ compulsory maternity leave.
For maternity leave the woman must give notice to her employer no later than the end of the 15th week before her EWC, or as soon as reasonably practicable afterwards, of:
- her pregnancy
- the EWC
- the date she intends to start her OML, which can’t be earlier than the 11th week before the EWC.
To avoid losing the right to OML, the woman mast notify her employer as soon as possible that she is absent due to pregnancy and the date that her absence began for that reason. Additionally, if the leave is triggered by giving birth, she must notify her employer as soon as reasonably practicable after the birth that she has given birth and the date on which this occurred.
The employer is entitled to ask that the woman produces a certificate from a registered medical practitioner or a midwife confirming the EWC. Employers should seek advice from employment solicitors for advice on legal compliance.
If the baby is born prematurely the maternity leave starts on the day after the baby is born regardless of any date formally notified. The mother is entitled to a full leave if she has given birth to a live baby, even if the baby doesn’t survive very long, or if she has a stillbirth after 24 weeks of pregnancy.
The same notifications must be given by the woman for AML as for OML.
Returning from maternity leave
The employer has 28 days to notify the woman of her date to return to work following receipt of notification that she intends to take leave. If the woman has told the employer of a variation in the start date, the employer must notify her within 28 days of the start of OML when the maternity leave period will end.
It is assumed that the woman will return at the end of her 12 months’ leave. She can return early by giving at least 8 weeks’ notice. The employer is entitled to postpone the return to work date for up to 8 weeks although this cannot be beyond the end of the relevant maternity leave period. The key is for the woman to give at least 8 weeks’ notice before her original date or her new date, whichever is earlier, of any revised return to work date. If the woman can’t return after her leave due to sickness the normal sick leave procedures at work will apply.
A woman is entitled to return to the job in which she was employed before her absence on no less favourable terms and conditions than if she had not been absent. The employer can’t change the woman’s duties or workplace even if that is allowed by the woman’s contract. Women whose jobs are changed during their leave should seek legal advice from an employment solicitor. Pregnancy and maternity rights are taken seriously by employment lawyers and employment tribunals.
Redundancy during maternity leave
If an employer decides it’s not practicable to continue employing the woman under her existing contract of employment while she is on maternity leave, the woman must be offered any suitable available vacancy with her employer or an associated employer. The terms offered must not be less favourable than under her previous contract. The offer must be made before the end of the existing employment contract and start immediately at the end of the existing contract. This special right does not apply when the woman’s position becomes redundant during pregnancy.
Rights during maternity leave
Less favourable treatment because a woman is absent on maternity leave is unlawful maternity discrimination under the Equality Act 2010. Failure to inform a woman on maternity leave about job vacancies in which she might be interested while she is away could entitle her to resign. It may also be pregnancy and maternity discrimination.
It is discriminatory not to give the woman a performance related pay assessment because she has been absent on maternity leave. Similarly, she must be given the benefit of any pay rise awarded before or during maternity leave.
During maternity leave a woman is entitled to the benefit of all her terms and conditions of employment excluding remuneration. Maternity pay must not fall below an adequate level generally set at that of statutory sick benefits. This is usually satisfied by the level of statutory maternity pay.
A woman can carry out up to 10 days’ work or training for her employer during statutory maternity leave without bringing the leave to an end or losing her maternity pay. Additional payments for working in those days can be agreed. Neither employee nor employer can insist on work being carried out during maternity leave. If a woman is dismissed or otherwise penalised for refusing to do such work, she can claim automatic unfair dismissal or unlawful detriment. It is a criminal offence for a woman to be made to carry out work in the two-week compulsory leave period following childbirth.
Suspension from work on maternity grounds
Once a woman has notified her employer in writing that she is pregnant, has given birth in the previous six months or is breastfeeding, the employer must carry out a specific work assessment in relation to her. Although the assessment does not need to be in writing, if risks are identified the employer must alter the woman’s working conditions or hours of work. If this is not reasonable or it would not avoid the risk, the employer must suspend the woman from work for as long as necessary. This is the woman’s entitlement to a health and safety suspension. However, the woman is entitled to be offered any available suitable alternative work before being suspended.
Failure to carry out a risk assessment for a pregnant woman can be sex discrimination in itself, but only if the woman’s work is of a kind which could put her at risk. It would also be sex discrimination for an employer to impose a change of duties or suspension on an unwilling woman where this would not be necessary because of the low level of risk to her.
During a suspension of this kind the woman is entitled to be paid unless she has turned down an offer of suitable alternative work.
The risks covered include night working and any physical, biological or chemical agent which carries risk to the health and safety of a new or expectant mother. Physical risks include extremes of heat and cold, prolonged exposure to loud noise, manual handling, regular exposure to shocks or vibration, excessive physical or mental pressure causing stress and anxiety, and fatigue from standing and other physical work. Addressing the risks might involve ensuring suitable seating, granting longer and more frequent rest breaks, adjusting workstations, and ensuring that hours and volume of work aren’t excessive and, where possible, allowing the woman some control over her own workload.
It is automatically unfair to dismiss a woman because of her entitlement to medical suspension, and unlawful to subject her to a detriment for that reason. It is also automatic unfair dismissal to dismiss a woman who refuses to work in a situation which she reasonably believes may entail serious or imminent danger.
A woman who is suspended without pay may claim her pay from an employment tribunal. Employment tribunals have jurisdiction to award uncapped sums that they consider just and equitable where a woman is given paid suspension but the employer has failed to offer some available suitable alternative work.
Other family friendly rights
As well as pregnancy and maternity rights the law provides adoption leave, paternity leave, parental leave, dependant leave, and flexible working. Some of those rights are referred to in our article ‘Flexible Working and Dependant Leave’. Dependant leave and flexible working rights are particularly important with our ageing population at a time when many of us have responsibilities to care for the elderly. Time off to care for dependant relatives including the elderly is of increasing importance and necessarily has an impact on the lives of employees.
For legal advice on pregnancy and maternity rights at work or any aspect of employment law, particularly if you are looking for specialist employment solicitors in Cambridge, call Cambridge Legal on 01223 776200 or email enquiries@cambridgelegal.co.uk