At present there are two sets of rights for pregnant employees, one for those whose babies are due on or before 31 March 2007 and another for those whose babies are due on or after 01 April 2007. This dual system has come about because of a recent review by the Government on maternity and family related legislation.
Leave entitlements
Pregnant employees whose babies are due after 01 April 2007, irrespective of their length of service, are entitled to a total of 52 weeks’ maternity leave, 26 weeks of which are Ordinary Maternity Leave (OML) and 26 weeks of which are Additional Maternity Leave (AML). There is also a minimum period of two weeks leave which must be taken (four if the employee works in a factory) which is known as Compulsory Maternity Leave.
The employee must comply with the following notification conditions: to inform the employer no later than the end of the fifteenth week prior to the expected childbirth date, or if not reasonably practicable as soon as is reasonably practicable, of:
(a) the fact that she is pregnant;
(b) the expected due date of the birth; and
(c) the date that she intends to commence her maternity leave.
The employee can determine when her OML commences, although it cannot start more than 11 weeks before the due date, and (unsurprisingly) at the latest it must start on the day of the birth. However, where the employee takes time off work for a reason related to her pregnancy within the four weeks prior to the due date the OML is automatically triggered. The employee can change the date the OML is to commence provided that she gives a minimum of 28 days’ notice to her employer.
If the employee elects to take AML this period must commence immediately following her OML.
Statutory Maternity Pay and Maternity Allowance
Pregnant employees who meet conditions based on their length of service and average earnings and who meet the notification requirements are entitled to receive up to 39 weeks’ Statutory Maternity Pay (SMP) from their employers.
Employers who are required to pay SMP may recoup 92% of the payments back from HMRC. Small businesses (those who have paid less than £45,000 in NI contributions in the prior tax year) may recoup up to 104.5%.
SMP is calculated as at 90% of the employees average weekly wages for the initial 6 weeks’ leave, and for the next 33 weeks the employee is entitled to receive SMP at the rate of £108.85 per week or if less 90% of the employees average weekly wages. This effectively means that if an employee does choose to take her full entitlement to both OML and AML, her Statutory Maternity Pay will end half way through the AML period. These figures are reviewed annually and the Government has suggested that it will extend SMP to cover the entire AML period in the future.
If the employee concerned does not meet the requisite conditions, they may be able to claim a maximum of 39 weeks’ Maternity Allowance from their Job Centre.
Many employers have contractual maternity pay schemes which enhance the statutory maternity pay entitlements. These differ considerably from one organisation to another, and sometimes provide that the enhanced entitlements are repayable to the company if an employee does not return to work after her maternity leave ends.
Return to work
A woman who returns to work after her OML (having not taken AML) is entitled to return to the same role governed by the same contract as she was employed prior to taking OML. The exception to this is where there has been a genuine redundancy situation, in which instance she will be entitled to be offered suitable alternative employment. Furthermore, she will be entitled to any contractual enhancements which she would have received had she not been on OML, for example pay rises given to others in the same role as her.
An employee who is refused to be allowed to return following OML is entitled to claim automatic unfair dismissal and may also have a claim for sex or pregnancy-related discrimination.
An employee returning from AML is entitled to return to the same job, governed by the same contract as she was employed prior to taking maternity leave, unless there is a reason why it is not reasonably practicable for her to do so, in which case she should be offered a similar position on terms and conditions which are no less favourable than her previous position.
Keeping in touch and planning ahead
The new maternity legislation provides that the employer and employee may contact each other during maternity leave , provided this contact is kept to a reasonable level in order to discuss plans for returning, to keep the employee informed of important developments and to inform the employee of appropriate employment opportunities.
The legislation has created 10 ‘keeping in touch’ (“KIT”) days where the employee can (if she wants) work for the employer during the period of maternity leave provided both the employee and employer are in agreement that this is to happen and regarding the nature of the work to be undertaken. There is no obligation on the employee to attend KIT days or for the employer to offer them.
The employee is entitled to be paid for the work she undertakes on KIT days, such rate of pay is to be agreed between the employee and the employer provided it meets the requirements of the national minimum wage.
Other pregnancy related rights
Pregnant employees are entitled to a reasonable period of time off work to attend antenatal care and medical appointments.
Where an employee has been treated less favourably on the ground that she is pregnant she may have a claim for sex discrimination.
There are various health and safety implications in connection with pregnancy, such as where the employee is female and of child bearing age, the employer is obliged undertake a health and safety assessment of the risks that could be posed to a pregnant employee or a new mother.
