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With more and more women on maternity leave complaining about the treatment they receive from their employers, it is important that employers know what legal rights employees have before, during and after maternity leave. In this article, we summarise the law on maternity.
A recent report by Citizens Advice says that the number of women seeking advice due to maternity leave issues has risen by 60% in the past year.
The grounds for complaint include:
- Having their hours cut
- Being placed on zero-hours contracts
- Their role being changed on returning to work
- Being made redundant or pressured to resign
It is surprising, in this day and age and in a society that prides itself on equal rights for all, that this statistic is so high.
To avoid becoming part of this statistic, or worse yet, defending a claim for pregnancy and maternity discrimination or sex discrimination, you need to know what legal rights women on maternity leave have and make sure that you put in place appropriate training for your managers that are likely to deal with maternity leave queries or flexible working requests.
Pregnancy and Maternity – Discrimination at Work
Treating a woman less favourably than others because of her pregnancy or because she has taken maternity leave is direct discrimination and is prohibited under the Equality Act 2010. An employee does not need to have any minimum length of service with an employer in order to be protected against discrimination.
In addition, a woman has enhanced rights against discrimination from the start of her pregnancy and up until the day she returns to work after the pregnancy (the “protected period”). A woman in the “protected period” has the right not to be treated unfavourably because of her pregnancy, because of pregnancy related illness, or because she is on or has exercised her right to take maternity leave.
Examples of “unfavourable treatment” include:-
- refusing the employee training or a promotion
- reducing an employee’s pay or hours
- demoting an employee on her return to work following maternity leave
A woman continues to have this protection even when she returns from maternity leave if the decision to take the unfavourable treatment was made during the protected period but the action by the employer was taken after her return to work.
This issue is likely to remain in the news as a result of an ongoing class action against Sports Direct. The claim is being made by workers who say they were put on zero-hours contracts on their return from maternity leave. As a result, they were not eligible to have access to a generous bonus scheme that was only available to full-time staff.
Rights before Maternity Leave
A pregnant employee (or agency worker) has the right to a reasonable amount of paid time off for antenatal appointments. All pregnancies are different and some women may need more antenatal visits than others. The employee should be guided by her doctor or midwife on how many antenatal appointments are recommended.
The partner of the pregnant employee also has the right to take time off to accompany the expectant mother at two antenatal appointments, but this is unpaid.
Rights during Maternity Leave
During maternity leave, an employee retains all of her contractual terms and conditions, apart from the right to be paid her basic salary. This means she should continue to receive any benefits in kind e.g. she remains covered by the company’s medical insurance and she should be entitled to use any company car or mobile phone. In addition, she continues to accrue holiday entitlement whilst on maternity leave and she should be allowed to carry over any untaken holiday to the next holiday year if her maternity leave spans two holiday years.
An employee can take up to 52 weeks maternity leave (26 weeks’ ordinary maternity leave and 26 weeks’ additional maternity leave) and still have the right to return to work. She must take two weeks compulsory maternity leave (or four weeks if she works in a factory).
The employee does not have to state that she wishes to take the full 52 weeks maternity leave or inform her employer of her intended return date. An employer can assume a return date at the end of the 52 week period. If the employee wants to return earlier than this date she must give her employer at least eight weeks’ notice of her intention to return to work on an earlier date.
An employee can attend work for up to 10 days during maternity leave without bringing her maternity leave to an end. These “Keeping in Touch” days are not compulsory and should be agreed between the employee and the employer. They can be useful for preparing an employee to return to work and making sure the pregnant employee does not feel left out whilst on maternity leave.
If the employee wants to return to work before the end of the 52 week maternity leave period, she could opt to take shared parental leave so that both she and her partner can take leave to care for the baby within the first year after childbirth.
An employee that is identified as at risk of redundancy during maternity leave (which is very risky for an employer) must be offered any available suitable alternative employment before such vacancies are offered to other employees or external candidates.
Returning to work after Maternity Leave
An employee returning to work after 26 weeks’ ordinary maternity leave has the right to return to her old job on the same terms as she was previously employed.
An employee returning to work after taking additional maternity leave has the right to return to her old job on the same terms as she was previously employed unless it is not reasonably practicable for her employer to permit her to do so, in which case she is entitled to return to a suitable alternative role, with commensurate pay and status.
If the employee wants to change her hours of work she can make a flexible working request and the employer must consider the request seriously and not simply dismiss it out of hand. As long as the request is considered properly and the employer can rely on one of the business reasons (as stipulated in the statute), the requested flexible working arrangement can be declined.
If you have any questions about maternity leave rights or are concerned about any issues arising from an employee’s maternity leave, please contact Lee Gabbie at lee.gabbie@bracherrawlins.co.uk or Lisa Rice at Lisa.rice@bracherrawlins.co.uk
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