Do you know your rights whilst on maternity leave?
I have adapted this really useful guide to maternity leave that popped into my inbox recently. It is written and provided by Richard Gvero, Head of Employment at Longmores Solicitors and is part of their employment law bulletin. It is an excellent guide to some of the main points to remember before, during, and after your maternity leave, and highlights your rights as an employee. I hope you find it useful.
The lead-up to maternity leave
When you tell your employer that you are pregnant, you become entitled to the right not to be subjected to a detriment, which means not being treated less favourably than anyone else in the workforce, for a reason connected to your pregnancy or maternity leave.
You have the right to take up to 52 weeks off work.
A small part of that is obligatory; a woman who has just given birth must not work for at least two weeks (or four weeks if theirs is a factory job). That is known as Compulsory Maternity Leave (CML), and it applies from the day on which your child is born. It is a criminal offence for an employer to allow an employee to work during the CML period.
Ordinary Maternity Leave (OML)
This is a period of 26 weeks, which all employees who give birth are entitled to take irrespective of how long they have worked for their employer.
It is subject to notification rules. The key date is the end of the 15th week before the week in which the baby is expected to be born. That 15th week is known as the Qualifying Week. As an employee you must, by the Qualifying Week (or if that’s not reasonably practicable, then as soon as it is reasonably practicable), tell your employer:
- that you are pregnant;
- the Expected Week of Childbirth (known as the EWC); and
- the date on which you intend your OML to start. That date cannot be earlier than the beginning of the 11th week before the week in which the baby is expected to be born. That start date can be changed by you, usually on 28 days’ notice.
Once your employer has received notification of the date on which you want your maternity leave to begin, they must write back to you within 28 days confirming your return-to-work date.
Additional Maternity Leave (AML)
You may also take AML (a period of up to another 26 weeks) straight after your OML. As with OML, you don’t have to have worked for your employer for a minimum amount of time before being entitled to this.
Shared Parental Leave (SPL)
Parents can also choose to share up to 50 weeks of the woman’s maternity leave. Each parent would usually need to give their employer eight weeks’ notice of the date on which they would like their SPL, or each period of SPL, to start (SPL can be taken all at once, or in blocks).
Once your employer knows that you are pregnant and will be taking maternity leave at a particular point, they will have responsibilities in relation to your health and wellbeing. These can include:
- assessing the risks to which you, or your baby, could be exposed at work. Typical examples are around lifting heavy objects, contact with substances, or simply long working days;
- changing aspects of the working environment or your terms of work (hours, for example) that expose you to risk; and
- if necessary, where risk cannot be eliminated or sufficiently reduced, looking at making greater changes to your role (making sure that the new role isn’t substantially less favourable) or, if it comes to it, suspending you on full pay.
It is a legal requirement that you be allowed to take paid time off work for antenatal appointments during your pregnancy.
Things don’t always go to plan, so your employer needs to be as flexible and supportive – and ready – as possible. If the baby is born early, your maternity leave will begin on the day after the birth. Similarly, maternity leave can be triggered automatically by your pregnancy-related absence in the four weeks before the EWC. In each of those cases your employer would need to write to you within 28 days, confirming the new date on which your maternity leave would end.
During maternity leave
Whilst on maternity leave you remain an employee. Your employment contract continues and, with it, the rights and obligations that have always applied to you. However, one thing that does change during maternity leave is the entitlement to be paid at the same rate as before. Anything classed as ‘remuneration’ (which includes things like sick pay, as well as salary) is taken out of the equation when it comes to paying you.
Statutory Maternity Pay (SMP) is payable if you have worked for your employer for at least 26 weeks. You must also have average earnings of at least the National Insurance Lower Earnings Limit (currently £113 per week) during the eight weeks leading up to and including the Qualifying Week. If you are entitled to SMP, then you must be paid a specific rate. You should get:
- the first six weeks of your maternity leave paid at the ‘earnings-related rate’, which is 90% of your average weekly earnings; and
- for the next 33 weeks of your maternity leave (SMP is only payable for 39 weeks in total), you should get the ‘prescribed rate’. The current prescribed rate is £140.98 per week, but that is set to change in April 2018. If your earnings-related rate is lower than the prescribed rate, you should get that instead.
It may be that your contract allows for more generous contractual maternity pay and other entitlements.
Your annual leave does not stop accruing when you are off work (OML and AML), but you are not allowed to take annual leave while on maternity. Given that employers have an obligation to allow employees to take their leave, and if you didn’t use up your annual holiday leave allowance before going on maternity leave, other provision must be made. The signs are that unused statutory leave may, in this situation, need to be carried over to the next leave year. Remeber that holiday pay isn’t payable during maternity leave because it counts as ‘remuneration’.
Contact with your employer
Out of sight should definitely not be out of mind. As an employee on maternity leave you can feel distanced from things that are happening at work. While that is to an extent inevitable, your employer must not exclude you from important things. The real danger is that you miss out on opportunities or are otherwise subjected to less favourable treatment connected to being on maternity leave.
There are formal ways that your employer can maintain contact with you. ‘Keeping in Touch’, or ‘KIT’ days are specific, pre-arranged days when you go back into work to carry out certain tasks, or to be brought up to speed on developments (for example) during your maternity leave – once your CML is over. It is open to you and your employer to put in place up to 10 KIT days for which you will usually be paid your pre-maternity level of pay (there are SMP off-setting issues to take into account) or will be given paid time off in lieu once you have returned. However, you cannot be forced to work KIT days if you don’t want to. It’s a matter for agreement between you and your employer.
Aside from having these allocated KIT days, employers might not feel comfortable contacting you during maternity leave, and there are certainly a few ground rules employers ought to follow.
‘Reasonable’ is the operative word; you don’t want to be bothered with casual enquiries from your employer. But it’s vital that you are included in developments that are significant, and which are relevant to you and your role – whether that’s the reorganisation of your team, consultation on strategic or contractual changes, or training and development opportunities that are made available. Failing to tell an employee about a chance to apply for promotion, for example, could be discrimination on grounds of pregnancy or maternity. It could also breach the mutual trust and confidence that is essential to the employment contract, potentially leading to a constructive dismissal. But even details of social events like the Christmas party, which you may choose to attend if you would like to, should be passed on.
There are two particular hotspots:
Whilst on maternity leave you are as entitled as other employees to be included in the process.
- If you are not properly consulted whilst on maternity leave, about possible redundancy, that is probably unlawful pregnancy or maternity discrimination. That will be the case even if your employer feels it might worry you or otherwise distract you from the job of looking after your baby. The onus is on your employer to work around this and to find the best way of involving you in the process.
- If you are selected for redundancy because of your pregnancy, maternity leave or something connected with those things, that will be unlawful discrimination and it will also be automatically unfair. An employer realising that they can cope without you would not be a valid reason to make you redundant. It would risk discrimination and you may be able to automatically claim unfair dismissal because your absence from work (to have a baby) led to your dismissal.
- If you are made redundant while on maternity leave you should not have to apply for a suitable alternative role; You must be offered that vacancy ahead of other employees.
In a genuine redundancy situation, the employer needs to make sure that you are not disadvantaged (and, in the case of suitable alternative roles, are actually given an advantage over others). If your employer includes attendance as a selection criterion, for example, they must discount your pregnancy or maternity-related absence. However, your employer should do no more than is reasonably necessary to ensure that you are not disadvantaged where it would prejudice the position of others at risk of redundancy.
2. Disciplinary situations
Many employers are understandably wary of instigating a disciplinary process against an employee while she is on maternity leave, whether the issue arose pre-maternity, or after her leave began. However, maternity leave doesn’t protect you from facing up to disciplinary charges. There is nothing wrong in principle with tackling this in the right way.
It is important that as an employee you are treated fairly and not disadvantaged in the investigation or at any stage of the process by being on maternity leave. As an employee you will retain your right to be paid SMP for the entire maternity period if you are dismissed.
When you return to work
Just because you have reached your agreed return date it doesn’t mean that things will go back to pre-maternity normality.
You may want to cut short, or extend, your agreed maternity leave period. If you want to take more time off once your maternity leave ends, then that is possible with the agreement of your employer. You might qualify to take parental leave once your AML has expired. Or you can request annual leave. You might decide not to return at all, in which case the usual termination provision in your contract would apply.
If you take no more than 26 weeks’ maternity leave, you are entitled to return to the same job, with the same/no less favourable terms and conditions, as you had pre-maternity leave. However, there is recognition that when, as an employee, you take a longer period of time out of the workplace, things may have changed. Where you take more than 26 weeks’ leave, and it is not reasonably practicable for you to go back to your old role, you are entitled to return to a different job (as long as it is suitable). The terms must be no less favourable than you enjoyed previously. If you refuse to take that job, and that refusal is unreasonable, a subsequent dismissal would not be automatically unfair (although it might still be procedurally unfair, depending on the circumstances). If, on the other hand, the job that you were offered was unsuitable, you may well decide to resign and claim constructive dismissal.
When returning from maternity leave you may decide that some adjustment to your pre-pregnancy working life is in order, whether that’s shorter weeks, later starts, or earlier finishes, for example. This is something that you might want to discuss with your employer during your maternity leave.
If you have worked for your employer for at least 26 weeks you have the right to request flexible working, and you and employer must comply with strict, statutory requirements as far as processing that request and implementing or rejecting change is concerned. Your employer must give your application proper consideration, and is only able to refuse a flexible working request on certain, specific grounds (although they are quite wide).
As an employee you may bring a claim if you think your employer has failed to comply with the statutory regime. But there is another possible consequence of an employer not agreeing to flexible working: you can make a claim for indirect sex discrimination. In that case, the employer would need to justify its decision not to allow you to change some aspect(s) of your working pattern on good business grounds. The refusal might even give rise to a constructive dismissal.
There is a lot to remember but with any luck your maternity leave and return to work will all go smoothly and all of the above will have been for just in case.
About the author: Thank you again to Richard Gvero at Longmores Solicitors for such useful information. Longmore’s is a long-established firm with a forward-thinking approach. Longmores’ Employment team is ranked in Chambers UK and The Legal 500. Richard Gvero and Catrin Mills are ranked as “Leaders in their Field” and “Recommended Lawyers” for employment and HR. For more information call 01992 300333.
About the photographer: Sue is a professional portrait photographer based in Harlow, Essex and she specialises in baby and child portraiture. Being a parent, she understands just how special your child is to you and her aim is to produce a collection of images that are natural and meaningful to your family. No two moments are ever the same and she wants to perfectly capture those early precious memories and the natural character of your child. For more information please call 01279 433392, visit the Sue Kennedy Photography website and follow Sue on Facebook or Instagram.
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