When it comes to making decisions on maternity leave, pay, hours and when to go back to work, mother knows best. However, what’s best for mother and baby does not necessarily suit the employer – particularly now that parental rights have crossed the gender barrier, entitling fathers to time off too.
Basic rights
Legislation provides for job security and some financial provision for new parents. Statutory maternity leave (SML) is a woman’s legal entitlement to take leave from work for a period prior to, including and following childbirth. It preserves her right to return to her job or an equivalent one afterwards. All women have the right to take ordinary maternity leave (OML) of 26 weeks and, if they have 26 weeks continuous employment prior to the 15th week before the expected week of confinement (EWC), the right to 26 weeks’ additional maternity leave (AML).
The level of statutory maternity benefits depends on the length of employment prior to the pregnancy and salary level. During the period of OML and AML, women are given the right to benefit from all their normal terms and conditions of employment, with the exception of terms relating to contractual remuneration.
In a case decided in 2005, IRC v Ainsworth, the Court of Appeal held that employees should not be able to accrue an entitlement to leave under the Working Time Regulations during AML.
Fathers have the right to the shorter period of paternity leave and statutory paternity pay, and similar provisions apply to adoptive parents. The law takes account of the return to work being fraught with difficulties. Hence there is provision for employees with parental or childcare responsibilities to apply to have their employment contracts varied under regulations providing for flexible working.
Discrimination prohibited
Although a woman is not obliged to inform her employer of her pregnancy, if she intends use her statutory rights, she must give notice of the date she intends to start her maternity leave 15 weeks before the EWC. She determines the start date but, provided she gives at least 28 days’ notice of a change of date, she can change her mind – unless it is not reasonably practical for her to do so.
As soon as the employer knows of the pregnancy, it will be alerted to its obligations, and the woman will be protected from unfavourable treatment by the Sex Discrimination Act 1975. The Employment Rights Act 1996 (ERA) gives her the right not to be subjected to detriment or dismissed for a reason connected to her pregnancy. She will be entitled to paid time off for antenatal care – a good reason for informing the employer at an early stage of the pregnancy. But, above all, and of paramount interest to OH, she has a particular right to health and safety protection.
Dismissal because of pregnancy or childbirth or for taking any related benefit (taking maternity leave, for example) is deemed to be automatically unfair. The most common situation is a dismissal without following normal/statutory procedures when the employee fails to return after maternity leave.
Note particularly that redundancy during pregnancy is covered by regulations and requires a suitable alternative vacancy to be offered to the employee if one exists. Obviously, selection for redundancy on the grounds of pregnancy, childbirth or the taking of leave amounts to automatically unfair dismissal.
Health and safety issues
The Management of Health and Safety at Work Regulations 1999 provide for risk assessments to be carried out for pregnant women and those who have given birth within the previous six months. The regulations define a ‘new or expectant mother’ as one who is pregnant or has given birth in the past six months (whether the child is living, or was stillborn after 24 weeks or more of pregnancy).
Although it is often assumed that the mother has to be breast-feeding, that is not a requirement to attract the protection of the law. If it unsafe for her to carry out her usual work and, in particular, if her usual work is night work and her doctor certifies that this puts her health at risk, the employer must find suitable alternative work or, if that is not possible, she must be suspended on full pay.
Maternity pay
There are various rates and periods of statutory maternity pay (SMP). A woman who has worked for 26 weeks prior to the 15th week before the EWC receives 90% of her average weekly earnings for the first six weeks of maternity leave. She receives the flat rate of SMP for the remaining 20 weeks. Although it sounds obvious, she must have stopped working to receive SMP, and she is entitled to it regardless of whether she intends to return to work. Even if the employer hits hard times, the entitlement to SMP remains.
In a 1984 case, Secretary of State for Employment v Cox, the week after Mrs Cox started her maternity leave, the employer became insolvent. The Secretary of State refused to meet her claim for SMP, because there was no ‘work’ from which she could be ‘absent’, as the employing company no longer existed, and she could not therefore return to work.
However, the court held that there is an absolute right to maternity leave and pay after the start of the qualifying period of absence, which is not contingent on the return to work.
When earnings are calculated to evaluate the amount of SMP, the employer must take note of pay increases with retrospective effect, even if they are awarded after the commencement of maternity leave.
Loosening the apron strings
When the time comes to return to work, there can be no sudden change of heart. At least 28 days’ notice of a proposed early return must be given, and the employer has the right to refuse. Interestingly, regulations specifically provide that a woman who ignores an employer’s postponement and returns to work early has no contractual entitlement to be paid until the date specified by the employer.
At present, an employer does not have the right to request that an employee notifies them in writing of whether they intend to return to work at the end of the AML. The assumption is that she will come back, but after AML, the guarantee is only to return to like work, not necessarily to her original post.
Before the next baby
- New regulations on maternity and adoption leave and flexible working are on the way – the consultation period ended on 18 April 2006. The regulations are available at www.dti.gov.uk/er/work_families_regs_jan2006. This is what lies in store:
- SMP and related benefits such as maternity allowance will be extended from 26 to 39 weeks
- ‘Reasonable contact’ (to be defined) will be permitted between employer and employee
- There will be a reduction in the qualifying period for AML to be the same as for OML
- An employee who intends to return earlier than the end of her AML will be required to give her employer eight weeks’ notice of her return
- A person will be permitted to carry out work or training during maternity leave, except in the first two weeks after the birth, without losing any leave. Since legislation has been in force, it has been, and will remain, unlawful to resume work during those first two weeks
- The small firm exemption will be removed in relation to protection from automatically unfair dismissal. This means that an employee will have the right to return to the same or similar job regardless of the size of her employer.
Key points
- The Management of Health and Safety at Work Regulations 1999 provide for risk assessments to be carried out for pregnant women and those who have given birth within the previous six months.
- If it is unsafe for a mother to carry out her usual work and, in particular, if her usual work is night work, and her doctor certifies that this puts her health at risk, the employer must find suitable alternative work or, if that is not possible, she must be suspended on full pay.
Any enquiry about this article may be made to Joan Lewis at [email protected], telephone 020 8943 0393. Linda Goldman, BDS, LLB, is a barrister at 7 New Square, Lincoln’s Inn, London. Joan Lewis, MCIPD, MA (law and employment relations) is an independent employment law consultant, licensed by the General Council of the Bar under BarDirect
Casebook
Page v Freight Hire (Tank Haulage) Ltd [1981], 1 AER 394
Ms Page was a 23-year-old lorry driver. Freight Hire refused to permit her to transport certain chemicals (dimethyl-formamide) because they were potentially harmful to women of child-bearing age. Page brought a complaint of sex discrimination. The company’s defence was that it had no choice, as it had a duty under the Health and Safety at Work Act to protect her health and safety.
The court held that the fact that the discriminatory action was taken in the interests of health and safety did not of itself provide a defence to the complaint of unlawful sex discrimination. However, the employer was protected by section 51(1) of the Sex Discrimination Act 1975, because the action was taken to comply with the employer’s statutory duty.
Brown v Rentokil Ltd [1998], IRLR 445
Ms Brown was one of Rentokil’s drivers. She became pregnant in August 1990. Shortly afterwards, she was absent with pregnancy-related illnesses until she was dismissed, in accordance with Rentokil’s sickness absence rules and procedures, in February 1991. Brown claimed for sex discrimination.
The European Court of Justice held that the company’s application of the contractual term to Brown while she was pregnant constituted direct discrimination on the grounds of sex. The dismissal of a female worker on account of pregnancy constitutes direct discrimination, as it can only affect women.
A dismissal during pregnancy because of a pregnancy-related illness rendering her incapable of work constitutes direct discrimination because the illness is a specific feature of pregnancy, and cannot be distinguished from the pregnancy itself. However, where a pregnancy-related illness arises after maternity leave, a woman is no longer automatically protected against dismissal.
The question then to be asked is whether a male worker with the same absences under the same conditions, would also have been dismissed.
Visa International Service Association v Paul [2004], IRLR 42
During Ms Paul’s maternity leave, she was not notified of a vacancy which had arisen by reason of reorganisation in the department where she worked. She resigned and succeeded in her compensation claims for:
- Automatically unfair constructive dismissal for a pregnancy-related reason under section 99 of the Employment Rights Act (ERA)
- Having suffered a detriment under section 47C of the ERA
- Having been victimised by the employer by reason of its acts in bringing a counterclaim for the recovery of contractual maternity benefit. The employer had brought the counterclaim when Ms Paul had issued proceedings under the Sex Discrimination Act 1975.
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Hoyland v Asda Stores Ltd [2005], IRLR 438
Ms Hoyland claimed to receive the full benefit of an earnings-related bonus while on maternity leave. The court held that it is lawful to take absence on maternity leave into account by pro-rating a discretionary bonus based on profits earned over the period during which the woman was absent (save for the two weeks of compulsory maternity leave).
