Maternity Employment Law Advice

If your employee is pregnant, she is guaranteed up to 52 weeks’ maternity leave which she can take as a continuous period of absence before or following the birth of her child.

During this time, it’s your responsibility as an employer to make sure she keeps all of her usual benefits and privileges (other than pay) that she is entitled to as a member of your organisation.

If you fail to do so, you could find yourself accused of sex discrimination, with the potential to be called to an Employment Tribunal to deal with the allegations. If found guilty of pregnancy sex discrimination, you could be required to pay your employee significant compensation, as well as suffer serious damage to your reputation.

Fathers are generally entitled to one or two weeks of paid paternity leave when their partner is having a baby, they are adopting a child or are having a baby through a surrogacy arrangement.

Paternity leave must be taken all at once and it cannot start before the child is born. It must also end within 56 days of the birth.

An expectant father does not need to specify the exact date their paternity leave will start. It is normal for them to instead state that they wish their leave to start at a specific date in relation to the birth e.g. on the day of the birth or one week after.

If they wish to change the date when their paternity leave will begin, they need to give you, as their employer, at least 28 days’ notice.

Shared Parental Leave (SPL) can allow an employee and their partner to split up to 50 weeks of time off work between them following the birth of their child or adoption. They can also split up to 37 weeks of pay between them.

This shared parental leave and pay needs to be used within the first year after their child is born or adopted. SPL can be taken all in one go or it can be taken in blocks, allowing the employee to work in between. An employee and their partner can take the leave at the same time or take it in turns to work to be at home with their new child.

To qualify for Shared Parental Leave, both parents need to:

• Share responsibility for the child at the time of their birth/adoption
• Meet the relevant work and pay criteria (which will depend on the circumstances)

Employees have the right to return to work after maternity leave, although exactly how this works will depend on the length of leave taken:

• If they have taken 26 weeks or less of maternity leave or adoption leave, an employee has the right to return to the same job.
• If they have taken more than 26 weeks of maternity leave or adoption leave, an employee has the right to return to their old job or a similar job (if it is not feasible for them to return to their old job). A similar job is one that has the same or better terms and conditions.
• If they have taken more than 26 weeks’ leave and they refuse to accept a different job with the same or better conditions, this can be taken as the employee’s resignation.

An employee is required to give you a minimum of 8 weeks’ notice if they wish to change the date when they will return to work.

In short, yes. While on maternity leave, paternity leave, shared parental leave or adoption leave, employees have the same rights with regards to redundancy as any other employee.

This means that, although you can make an employee redundant while on parental leave, you will need to go through the same process as any other employee. This includes offering them a suitable alternative job where available and providing a clear justification for the redundancy that does not relate to the fact the employee is on parental leave.

Employees have the right to take time off while pregnant for appropriate antenatal care. This typically includes attending medical appointments, but can also cover the need to attend antenatal or parenting classes (as long as they have been recommended by a doctor or midwife).

You will be required to pay your employee at the normal rate for any time taken off for antenatal purposes.

If your employee needs to take time off work for a pregnancy-related illness in the four weeks before their baby’s due date, their maternity leave and Statutory Maternity Pay will start automatically from this date.

The partner of a pregnant woman is entitled to take time off (unpaid) to attend up to two antenatal appointments.

Employees are entitled to Statutory Maternity Pay (SMP) while on maternity leave, as long as they meet the eligibility criteria.

SMP is paid for 39 weeks, with the first six weeks’ pay being set at 90% of the employee’s average weekly earnings and the remainder being paid at the standard SMP rate or 90% of their weekly earnings (whichever is lower).

The current SMP rate is £156.66 per week (as at April 2022).

To receive SMP an employee must:

• Have been working continuously for your company for a minimum of 26 weeks by the end of the 15^th week before the baby’s due date
• Have average weekly earnings equal to or in excess of the lower earnings limit for National Insurance contributions

If a pregnant employee accuses you of sex discrimination, they can in theory bring a claim against you at an employment tribunal. However, in most cases these types of issues can be resolved quickly and effectively without the need for formal action.

Options for resolving a pregnancy sex discrimination claim include negotiation between you and your employee (usually with the support of solicitors and potentially a trade union representative for the employee) or mediation.

This will typically result in a settlement agreement, where the employee will agree not to bring a formal employment claim over the issue in exchange for action on your part, such as making a one-off payment to the employee.

If you have been accused of sex discrimination, we strongly advise you to get in touch with our team straight away. We can advise you on the best way to resolve the situation while protecting yourself and your business.

Employees continue to build up holiday entitlement while on parental leave. They can take any holiday they have accrued either before their period of parental leave or when they are due to return to work.

You will usually need to continue making normal pension contributions during any paid parental leave an employee takes, but will not need to put money towards their pension during any periods of unpaid parental leave.

Employees can work for up to 10 days during maternity leave, adoption leave or additional paternity leave. These are known as ‘keeping in touch days’ or ‘KIT days’ and are optional, meaning both the employee and their employer need to agree to them.

Exactly when the days will take place, what type of work will be carried out and how much the employee will be paid should all be agreed in advance.

Using KIT days does not affect an employee’s rights with respect to their maternity leave, adoption leave or paternity leave.