With important changes to maternity rights now applying to
working mothers whose babies are due after 30 April, knowledge of legal
protection offered by health and safety legislation is vital. By Joanna Wade
Once an employee has informed her employer in writing that she is pregnant,
her employer has a duty to protect her against risks that come from everyday
things such as "movements and postures" and "fatigue", as
well as any obvious hazards. If there is a workplace risk the employer must
remove it by altering her conditions or, if there is no other option,
suspending her on full pay.
The health and safety regulations also state employers must provide
facilities for pregnant women and new mothers to rest, which includes the
ability to lie down. An employer must allow reasonable time off for antenatal
care taken on the advice of a doctor or midwife.
Protection from dismissal
If a woman is dismissed from her job for a reason relating to her pregnancy,
the fact that she has had a baby or taken maternity leave gives her a strong
case for compensation for unfair dismissal and sex discrimination.
Sometimes failure to do a risk assessment can lead to a sex discrimination
claim. For example, in Tapp v Chief Constable of Suffolk, Equal Opportunities
Review, Digest 37, a chief constable of Suffolk suspended a pregnant trainee
policewoman who was undergoing a training course which ended her promotion
prospects. If a risk assessment had been done they would have found that with a
few adjustments to the course, the trainee could have completed it without
risk.
Start of maternity leave
The earliest maternity leave can start is 11 weeks before the birth, but it
is up to a woman when she starts her leave and she can work right up to the
birth if she chooses. The only exception to this is if she is off work for a
pregnancy-related reason in the last six weeks of her pregnancy, in which case
she will be "triggered" onto her maternity leave when her absence
starts.
Return from leave
The right to return after ordinary maternity leave is to the same job. After
additional maternity leave the employer must allow her to return to the same
job and if that is not feasible to a suitable alternative on the same salary
and terms.
If an employee is sick, for example with post-natal depression, at the end
of either type of maternity leave, she will have unfair dismissal and sex
discrimination claims if she loses her job because she cannot physically return
to work. Health and safety protection continues to cover women who return to
work and their babies. It applies to women who have given birth in the last six
months or who are breast-feeding.
What if it all goes wrong?
Sometimes it goes wrong because either employer or employee do not know
their rights and obligations. The best way to diffuse a situation is therefore
to provide the necessary information. If the problem remains unresolved an
employee can often take a claim to an employment tribunal.
Joanna Wade is legal officer at The Maternity Alliance
Information line 020-75888582
Reaffirming maternity rights
Anita is four months pregnant but has not told her employer because she is
worried they will sack her when they find out. Last year they sacked a pregnant
woman claiming she was redundant but someone else is now doing that job. Anita
is suffering from exhaustion because of all the driving she has to do in her
job as a pharmaceutical saleswoman and her doctor has offered to sign her off
for stress.
What you need to tell her
– There are many advantages in telling your boss you are pregnant: you get
the right to paid time off for antenatal appointments; you have the right to
protection under the health and safety regulations; and, if you lose your job
because you are pregnant, you will have strong unfair dismissal and sex
discrimination claims.
– The health and safety rules mean if you are at risk because of your
working conditions it is your employer’s responsibility to take steps to keep
you safe by doing a risk assessment, not your responsibility to go off sick.
– If you go off sick with stress rather than with a pregnancy-related
illness the firm might take steps to sack you because of the amount of sick
leave you are taking. Any dismissal has to be fair but it is automatically
going to be against the law for you to be dismissed for a pregnancy-related
reason. The courts treat pregnancy-related illness as an integral part of
pregnancy.
– If you are made redundant because you are pregnant then this will also be
unlawful. It is sometimes hard to prove that the dismissal is connected with
pregnancy, so get expert advice.
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– When you are in the fifth and sixth months of your pregnancy your earnings
for Statutory Maternity Pay (SMP) will be assessed. If you go off sick and
receive only Statutory Sick Pay of £60.20 a week so that your earnings are less
than £67 a week in the two months ending with the 26th week of pregnancy, you
will get no SMP.
– Write to your employer and tell them you are pregnant and ask them to do a
risk assessment. It may not be plain sailing but it is your best option.
