Maternity leave: do you know what your employment rights are?

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A recent case, whereby a woman on maternity leave was sent an important email about redundancy to a work email address that she wasn’t checking regularly, has raised some curiosity around what your rights are whilst on maternity leave.

In this blog, our specialist team of employment solicitors answer some frequently asked questions about maternity leave employment rights.

What is pregnancy and maternity discrimination?

Pregnancy and maternity is a protected characteristic under the Equality Act 2010, which means that women are protected from being treated ‘unfavourably’ because they are pregnant and/or because they are on maternity leave.

What is unfavourable treatment?

With unfavourable treatment, an employee must not be disadvantaged because of their pregnancy or maternity. For example, they must not:

  • be subjected to unfair treatment because of pregnancy or maternity
  • suffer disadvantage because of pregnancy or maternity through the employer’s policies, procedures, rules or practices
  • suffer unwanted behaviour because of pregnancy or maternity

There is no need for an employee to compare treatment to how someone else is treated.

This protection also means that treatment which impacts on an employee negatively because of pregnancy or maternity may be discriminatory even though other staff are treated the same way.

Can I still access my employer’s benefits package whilst on maternity leave?

If your contract gives you a bonus based on work done in a year, you’re still entitled to part of your bonus. You’ll get your bonus for the part of the year you’re at work, but not the part of the year you’re on maternity leave. The time you’re at work includes the first two weeks after your baby is born and any keeping in touch days.

If you get a bonus based on length of service, this shouldn’t be affected as your maternity leave makes up part of how long you’ve been working for your employer.

If you get a bonus based on company profits, you should still get this.

If all staff get a bonus as a one-off, even if it isn’t part of your contract, i.e. extra money at Christmas, you should still get this.

Can I get made redundant or be dismissed whilst on maternity leave?

If a woman on maternity leave is selected for redundancy because she is pregnant or on maternity leave, it will be unfair dismissal.

Employers must be careful to ensure that the redundancy is for a genuine reason, i.e. closure of the business or diminishing need for the employee to do that work, and is not caused by the pregnancy or maternity leave itself. It is not enough for the employer to decide after the woman has gone on maternity leave that they are managing without her and so there’s no need for her to return. This will likely result in an unfair dismissal.

If the employer has decided that they need fewer employees, they will need to go through a fair redundancy selection process, ensuring that the employee who has been absent on maternity leave is not disadvantaged.

Dismissing someone for no fair reason whilst on maternity leave is likely to be unlawful because the employee would not have lost her job if she had not had to take time off work to have a baby.

Can my maternity cover get paid more than me?

Yes, but employers may find themselves in a position where the employee returns to work after maternity leave and claims that she should receive a pay rise to be in line with her maternity leave cover.

That employee may have a claim for sex discrimination if her cover is male and the employer cannot justify why he was paid more than her. Employers may be able to justify this by saying that they needed to offer a competitive salary to entice someone to come in on a fixed-term contract but they should be careful here and take legal advice if they’re planning to offer the cover more than the employee’s salary.

Aspects of my job changed whilst I was on maternity leave; what are my rights?

It will depend on what sort of changes are being made. If they are changes to the terms of your contract of employment, you could have potential claims against your employer. If they are changes on how you should carry out your job, i.e. new systems being introduced, you would probably be expected to co-operate and be flexible with this. This is a complex area and is very fact dependant, so take legal advice if you find yourself in this position.

Do I have a right to maternity pay?

You can get Statutory Maternity Pay (SMP) if you are an employee or worker, such as a casual or agency worker and your employer pays you through PAYE and deducts any tax or National Insurance, plus you meet the certain qualifying conditions as follows:

  • You must earn on average at least £118 a week
  • You must give the correct notice
  • You must give proof that you’re pregnant
  • You must have worked for your employer continuously for at least 26 weeks continuing into the ‘qualifying week’ – the 15th week before the expected week of childbirth

You cannot get SMP if you go into police custody during your maternity pay period. It will not restart when you’re discharged.

How much time can I take off for maternity leave?

All employees have the right to 52 weeks of maternity leave. Agency workers, casuals and other workers are not entitled to maternity leave, unless stated in their contract, but may qualify for maternity pay under different rules.

How long do I have to work at a company before being entitled to maternity pay?

Whilst there is no minimum length of service required to take maternity leave, you must be employed in the 15th week before the expected week of childbirth. A pregnant employee must tell their employer at least 15 weeks before the baby is due:

  • that they are pregnant
  • when the expected week of childbirth is (an employer can request a medical certificate that confirms this)
  • the date they intend to start maternity leave

How much notice does an employee need to give before returning to work from maternity leave?

When an employee first asks for maternity leave, they will give a date for returning to work. The employer should assume they’ll be away for a year unless told otherwise. The employee can change their mind, however. If the employee wants to end their leave sooner than the anticipated date, they should tell their employer at least eight weeks before their new end date. If they want to leave later, they should tell them at least eight weeks before their old end date.

If an employee decides not to return to work, their contract will tell them what notice to give – if this isn’t stated, it will need to be at least one week’s notice.

How we can help

To speak to one of our employment solicitors in Bristol or South Gloucestershire about your maternity rights, or for any other employment-related issue, call us on 0117 905 9763 or complete our 
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