XpertHR answers questions on maternity leave rights.
How will maternity leave provisions change under the forthcoming Maternity and Parental Leave (Amendment) Regulations 2006?
Fathers of children born on or after 3 April 2011 now have the right to additional paternity leave. Read more The Government is also consulting on introducing a new system of flexible parental leave, which it is aiming to introduce in April 2015. Read more Find up-to-date information maternity, paternity and adoption rights here or use the resources below: |
While at present only those employees with at least six months’ service at the 15th week before the expected week of childbirth qualify for additional maternity leave (AML), the government intends to remove this requirement, so that all pregnant employees who qualify for ordinary maternity leave (OML) will also qualify for AML. This means that all qualifying mothers will be able to take advantage of the forthcoming extension of the statutory maternity pay period from 26 weeks to 39 weeks.
The draft Maternity and Parental Leave (Amendment) Regulations 2006 also provide for an employee on maternity leave to agree to work for her employer for a limited number of days without bringing her maternity leave period to an end. These ‘keeping in touch days’ will be by arrangement between the employer and the employee, with the employer having no right to demand that work is undertaken, and the employee having no right to be offered any work.
While a woman is not required to forewarn her employer if she intends to return to work the day after her maternity leave ends, at present, she must give at least 28 days’ notice if she wishes to return to work at an earlier date. The draft amendment regulations extend this period to eight weeks’ notice.
Does an employee made redundant while on maternity leave have any special rights?
Yes. An employee on maternity leave is entitled to priority treatment as far as suitable alternative employment is concerned. Where an appropriate vacancy exists, she must be offered the alternative employment under a new contract that begins on the day immediately after the day on which her previous contract comes to an end. The new work must be suitable in relation to the employee and appropriate for her to do in the circumstances. The new contract provisions must not be substantially less favourable than those of the previous contract.
Where a suitable vacancy exists and the employer fails to offer it, the dismissal will be automatically unfair. However, where the employee rejects the alternative employment, or no suitable vacancy exists, the employer is entitled to dismiss by reason of redundancy.
Where a redundancy will take effect before a woman goes on maternity leave, is she entitled to preferential treatment with regard to suitable alternative employment?
No. An employer will be under an obligation to look for suitable alternative employment, in the same way as it would be if she were not pregnant. But it will not be under the strict obligation to offer her any suitable alternative vacancy she can perform even if she is not the best candidate, as outlined in the Maternity and Parental Leave etc Regulations 1999, regulation 10. This is triggered only if the woman is made redundant during maternity leave. However, employers should always be cautious about dismissing pregnant staff because of the risk of a sex discrimination claim.
Where a fixed-term employee’s contract is due to terminate while she is on maternity leave, does the employer have any obligations at the end of her maternity leave?
The non-renewal of a fixed-term contract is in law a dismissal. This is set out in the Employment Rights Act 1996, section 95(1)(b), which provides that an employee is dismissed by the employer if “he [or she] is employed under a limited-term contract and that contract terminates by virtue of the limiting event without being renewed under the same contract”.
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If an employee’s fixed-term contract comes to an end while she is on maternity leave, there is no express obligation on the employer to re-employ her. If it does not, the key question will be why the contract was not renewed. If the reason for this non-renewal is related to the employee’s pregnancy or the fact that she is on maternity leave, the dismissal will be automatically unfair under the Employment Rights Act 1996, section 99. Under this section, there is no need for the employee to have one year’s qualifying service to present her claim for unfair dismissal. It is also likely that an employee in such a situation would include a claim for sex discrimination.
If the non-renewal of the contract is due to a redundancy situation, the employer should remember that the employee is ‘entitled to be offered’ any suitable alternative employment (Maternity and Parental Leave etc Regulations 1999, regulation 10(2)). This places the employee in a preferential position to others facing the same redundancy situation. As the non-renewal of a fixed-term contract is a dismissal, the employer should also consider what other legal risks might exist as a result of the termination of the employment. In many cases, it may be advisable to offer suitable alternative employment to ensure compliance with fair procedure and avoid legal risk.
