Maternity Leave: Your Responsibilities As An Employer & The Rights Of Your Employees

A recent report by the Equality and Human Rights Commission (EHRC), found many employers needed more support to better understand the basics of discrimination law and the rights of pregnant women and new mothers. As an employer, you must be aware of your responsibilities to employees who are expectant parents, and aware of their rights.

Your Employees' Pregnancy And Maternity Rights

The EHRC inquiry found 44% of employers agree that women should work for an organisation for at least a year before deciding to have children. However, many of the rights that a woman has whilst pregnant are 'day one' rights so she will have protection regardless of her length of service with you.

If one of your employees is pregnant, she is entitled to a period of 52 weeks' maternity leave which is split into 26 weeks ordinary maternity leave and 26 weeks additional maternity leave. This is one of those 'day one' rights.

The birth mother in a surrogacy arrangement is also entitled to maternity leave, irrespective of whether or not she continues to have contact with the baby following the birth. She is entitled to a period of 52 weeks' maternity leave, regardless of the length of service with you. She may not return to work in the two weeks following the birth of the child (four weeks if she works in a factory) as this is a period of compulsory maternity leave. The intended mother in a surrogacy arrangement is not entitled to maternity leave, but may have the right to take adoption leave depending on whether she is eligible.

Employees are normally free to start their maternity leave at any time from the 11th week before their expected due date up to the actual birth.

Your employee must inform you by the end of the 15th week before the expected week the baby is due:

  • That she pregnant;
  • The expected week of childbirth;
  • The date she intends to start maternity leave.

You must then write to the employee within 28 days, setting out the date of her return.

All pregnant women are entitled to take time off, with pay, to attend antenatal care made on the advice of a medical practitioner and, if so recommended, can include such things as relaxation classes and parent-craft classes. You can request to see an appointment card from the second appointment.

Pregnancy can be associated with symptoms such as dizziness, sickness, back pain and fatigue. If an employee is unable to work because of a pregnancy related reason (other than in the last four weeks prior to the start of maternity leave), she should report sick under the normal company sick procedures. She is entitled to her usual rate of sick pay whilst off sick.

During the whole of the maternity leave period, the mother will be entitled to benefit from all of her normal terms and conditions of employment (except for 'remuneration' e.g. the payment of her salary and cash benefits) and her annual leave entitlement will continue to accrue therefore you may wish to discuss with your employee before she commences her maternity leave the arrangements for taking her annual leave. She may wish to take this before her maternity leave commences or, alternatively, she may wish to add it to the end of her maternity leave.

You should make reasonable contact with your employee to keep her informed of promotion opportunities and other information relating to her job that she would normally have been aware of if she was working. To aid with this, you can agree to take advantage of 'keeping in touch' (KIT) days which can be used for training, team events or for any form of work - 'keeping in touch' days will be covered further in one of our coming articles.

Rights Returning To Work

At the end of her maternity leave, a woman is entitled to return to work. If she returns to work at the end of her ordinary maternity leave then she is entitled to return to the same job as she was employed to do before her absence. If she returns to work at the end of her additional maternity leave period, she is entitled to return to the same job as she was employed to do before her absence except where it is not reasonably practicable for her to return to her old job (for a reason other than redundancy). Where it is not reasonably practicable for her to return to her old job, she should be offered another job which is suitable for her to do and appropriate in the circumstances. This should be on terms and conditions which are no less favourable to her.

If the employee is unable to return to work at the end of her maternity leave because she is sick (irrespective of whether the sickness is caused by the pregnancy or not) then she should report her sickness in line with the company procedure. She will be entitled to sick pay as per her contract of employment and/or subject to satisfying any usual eligibility conditions.

Employees sometimes want to return to work on different terms and conditions such as returning on a part time basis. Employees do not have an automatic right to return on this basis, and would have to agree any such changes with you. If the employee has made the request formally under the flexible working legislation then you need to give reasonable consideration to the request. You will need to take care that any refusal does not constitute indirect sex discrimination, ensuring that you have solid business justification for the refusal (see later article for further information on discrimination and pregnancy).

Health & Safety For Expectant Mothers

All employers who employ women of childbearing age should have already carried out a risk assessment identifying particular risks to new or expectant mothers.

Once an employee notifies you that she is pregnant, you should revisit this risk assessment in relation to the individual employee. You must take steps to protect the health and safety of employees who are pregnant, who have given birth within the last six months or who are breastfeeding.

You should assess any risks that the job presents and discuss them with the new or expectant mother. If she is at risk because of the nature of the job she is doing or she produces a medical certificate stating that she should not carry on the job that she is doing then you will need to consider the following in this order:

  • temporarily adjusting working conditions or hours with no loss of pay; or
  • moving her to another job which is suitable for her to do given her condition with no loss of normal pay; or
  • if the problem is still not resolved, suspension on full pay on health and safety grounds for the period of time she is at risk.

Your Employees' Rights To Maternity Pay

In order to qualify for Statutory Maternity Pay (SMP) your employee must meet the following conditions:

  • Have 26 weeks continuous employment up to the 15th week before the baby is due;
  • Still be pregnant at the start of the 11th week before the expected week of childbirth;
  • Earn at least £113 per week gross (2017/2018 tax year and rising to £116 per week from 6th April 2018) in the eight weeks up to and including the 15th week before expected week of childbirth;
  • Have given you proof of pregnancy;
  • Have stopped work;
  • Have given you 28 days' notice of when they want their SMP to start (this will usually be the same day as their maternity leave).

SMP is paid for up to 39 weeks. It is paid at 90% of your employees' usual salary for the first six weeks and then a flat rate of £140.98 (rising to £145.18 from 6th April 2018) or 90% of her usual salary (whichever is lower) for the remaining 33 weeks.

Your Employees' Parental Rights

In addition to the basic maternity rights outlined above, parents are entitled to time off for dependants from day one of their employment. They also have the right to apply for flexible working if they have worked for you for at least 26 weeks. Further, if they have worked for you for at least one year, they will be entitled to 18 weeks of unpaid parental leave for each child born or adopted which can be taken (in weekly blocks, usually up to no more than four weeks at a time) up to the child's 18th birthday. Further details on these rights can be found in our other articles.

As the topic of parental rights is causing uncertainty in the media, we hope we have given you a better understanding of your responsibilities as an employer. Please see our other articles covering paternity rights, rights of adoptive parents and shared parental leave for more details.

If you are an employer who needs advice on parental rights and your responsibilities to your employees or, if you are an employee who believes that your employer has infringed your rights then please contact Fosters on 01603 620508 or through our email contact form and one of our Business & Commercial Norwich solicitors will be in touch.