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. This 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

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 are 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. 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, e.g. the closure of the business or diminishing need for the employee to do that work. It must not be 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 decides they need fewer employees, they will need to go through a fair redundancy selection process. This ensures 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. This is 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 employer pay my maternity cover 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. However, they should be careful here and seek legal advice if they’re planning to offer the cover a higher salary.

Aspects of my job changed whilst I was on maternity leave. What are my rights?

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

Do I have a right to maternity pay?

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, you can get Statutory Maternity Pay (SMP).

As an employee, you must also meet the below qualifying conditions:

  • Earn on average at least £118 a week
  • Give the correct notice
  • 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

An employee cannot get SMP if they go into police custody during their maternity pay period. It does not restart when they are discharged.

How much time can I take off for maternity leave?

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

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

There is no required minimum length of service in order to take maternity leave. However, 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 before 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.

Should an employee decide 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.

Contact our employment solicitors

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 
online enquiry form.

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