Download Maternity The following is intended to provide a brief introduction to

Maternity
The following is intended to provide a brief introduction to the subject of maternity. It explains some of the
key basic ideas relating to this subject and should not be taken or treated as legal advice. Any specific
queries or problems relating to issues covered in this briefing note may be addressed via the Markel
Helpline.
Provisions apply equally to part time employees and full time employees.
1.
Antenatal Care
All pregnant employees, regardless of their length of service are entitled to reasonable time off to
attend appointments for antenatal care.
Appointments are not restricted to medical examinations and also include relaxation and parent craft
classes provided that they are on the advice of a registered doctor, midwife or health visitor.
Pregnant women are entitled to be paid for any time off taken at their normal rate of pay. If working
hours vary from week to week, they should be averaged out over the previous 12 weeks.
If required by their employer, pregnant employees must produce:

A certificate from a registered doctor, midwife or health visitor confirming that they are
pregnant; and

An appointment card or other document demonstrating that an appointment has been
made.
This requirement is excluded for the first appointment at which a certificate is being obtained by the
pregnant employee.
Should an employer do any of the following, the employee could make an application to the
Employment Tribunal:

The employer unreasonably refuses the employee time off for antenatal care

The employer fails to pay an employee correctly

The employer dismisses the employee for trying to assert her rights

The employer selects the employee for redundancy solely or mainly because she has sought
to exercise this right. There are no length of service requirements for making any such claim.
2.
Dismissal or Detriment on the Grounds of Pregnancy or Maternity
It is unlawful for an employer to:

Dismiss an employee when the reason (or principal reason) for the dismissal is connected
to her pregnancy or maternity leave, or for a reason connected to the fact that she has given
birth.

Make an employee redundant when the reason (or principal reason) for dismissal is
connected to her pregnancy or maternity leave, or for a reason connected to the fact that she
has given birth.

Treat her unfavourably for any of the above reasons
If a pregnant employee, or an employee on maternity leave, is dismissed she is entitled to written
reasons for her dismissal. The employee does not have to request the reasons or have any specific
length of service. If the employer refuses or fails to provide the written statement, or provides a
statement which she believes is untrue, she may bring a claim in the employment tribunal for sex
discrimination.
Unfavourable treatment or dismissal, on grounds of pregnancy, child birth or maternity may also
amount to unlawful sex discrimination. Again, there are no length of service requirements in order
to bring a claim for sex discrimination and there is no requirement to be an employee.
If pregnant employees are dismissed on grounds unrelated to maternity (such as gross misconduct
etc), the dismissal is not unfair by reason of their pregnancy or maternity leave. Of course, it can be
unfair for some other reason such as failure to follow the correct procedure (see the guidance note
on the statutory disciplinary procedure).
If a woman has been selected for redundancy (for reasons unrelated to maternity) she is entitled to
be offered a suitable alternative vacancy, if there is one available, before it is offered to any other
employee. This is a rare example of a duty on employers to positively discriminate.
If a woman on maternity leave is dismissed for redundancy, she is entitled to a redundancy
payment and notice payment as if she were not on maternity leave.
3.
Maternity Leave
All pregnant employees, regardless of their length of service, are entitled to a period of 52 weeks
maternity leave. This can be broken down into 26 weeks ordinary maternity leave (OML) and 26
weeks additional maternity leave (AML) however the differences between the two are now limited.
Since 2007 any employee that qualifies for OML is also entitled to AML.
3.1. Notification requirements
To take advantage of maternity leave, the pregnant employee must inform the employer of the
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pregnancy no later than the end of the 15 week before the baby is due;

that she is pregnant; and

what the expected week of child birth is (by means of a medical certificate if the
employer requests it); and

the date she intends to start her leave (in writing if the employer requests it). This
date can be changed by the employee giving her employer 28 days notice.
When the employer receives this notification from the employee, the employer must write to the
employee within 28 days to notify them of the date when their 52 weeks maternity leave will end
unless otherwise notified.
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An employee cannot commence maternity leave before the beginning of the 11 week before
the expected week of child birth.
A pregnant employee can work right up to the day of birth if she so wishes, however, if she is
absent from work because of any pregnant related reason in the four preceding weeks before
the expected week of childbirth her maternity leave will automatically start.
3.2. Other benefits during ordinary maternity leave and additional maternity leave

The OML and AML periods will count towards the employee’s period of continuous
service for other statutory rights, e.g. redundancy payments and also for other rights
based on length of service, such as pension rights.

During maternity leave, employees are entitled to benefit from all terms and conditions
of their employment (e.g. accrual of holiday, nursery vouchers, use of a company car
or mobile phone - unless provided for business purposes only) except remuneration.

Any employee denied these benefits may pursue a claim in the civil courts or
employment tribunal by claiming damages for breach of contract and / or
discrimination the grounds of pregnancy.

If the breach is significant enough to amount to a fundamental breach, then she may
also be entitled to resign and make a claim for constructive unfair dismissal in the
employment tribunal.
4.
Maternity Pay
Statutory maternity pay (SMP) is paid by the employer, however, the employer may claim back
some of the sums paid. It is advisable to contact Her Majesty’s Revenue and Customs (HMRC) for
more information.
Both full and part time employees qualify for SMP (subject to the criteria below).
Employees are entitled to a maximum of 39 weeks SMP providing that:

they have worked for their employer for a continuous period of at least 26 weeks ending with
the qualifying week, being 15 weeks before the expected week of childbirth; and

their average weekly earnings in a set number of weeks preceding the qualifying week were
at least equal to the lower earnings limit for National Insurance contributions (currently £111
per week). As a rule of thumb the earnings taken into account for monthly paid employees
are those set out on the last two pay slips before the end of the qualifying week. For weekly
paid employees the last eight pay slips are taken into account.
The rates of statutory maternity pay are as follows:

the first 6 weeks of SMP at 90% of the employees average weekly earnings;

the remaining 33 weeks of SMP at the standard rate, currently either £138.18 per
week, or 90% of the employees average weekly earnings, whichever is lower. The
rate is subject to change each April.
Once entitlement to SMP has been established in the qualifying weeks, the employer is obliged to
pay SMP even if an employee decides to leave before her SMP can start and even if she decides
not to return to work.
In order to receive SMP an employee must comply with the correct notification requirements (see
above).
If the employee so wishes, she may give notice for SMP at the same time as she gives notice for
her maternity leave. Otherwise she must give at least 28 days notice of the day on which she
wishes it to start.
5.
Maternity Allowance
If the employee does not qualify for SMP she may qualify for Maternity Allowance. This is a benefit
paid by the Department for Work and Pensions to those who do not qualify for SMP, or those who
are self-employed. The employee must have worked in at least 26 of the last 66 weeks and must
have earned an average of at least £30 in each of those weeks. They need not be consecutive or
for the same employer.
6.
Returning to Work
It is unlawful for a woman to return to work within 2 weeks of giving birth (4 weeks for factory
employees) - this is also known as compulsory maternity leave (CML) and runs at the same time
as OML. It is a criminal offence to allow women to work during CML.
If an employee decides she does not want to take her full leave entitlement then she must give the
employer 8 weeks’ notice of the intended date of return. However, the employer may agree a
shorter period of notice.
An employee does not have to give notice of her intention to return to work, she is entitled to simply
return to work at the end of her AML. This should be the same date that the employer notified her
as the end of her maternity leave.
At the end of OML a woman has the right to return to the same job with the same or not less
favorable terms and conditions,
She is entitled to any improvements since she has been away, e.g., a pay rise.
A woman who returns to work after AML is entitled to have the same job and the same terms and
conditions unless there is some other reason why it is not reasonably practicable for the employer
to allow the employee to return to her original job (for example if there has been a reorganisation).
In such circumstances the employee is entitled to be offered suitable alternative employment on
conditions which are not less favourable than those she was previously employed under.
If the employee does not wish to return to her job after maternity leave, she should give her
employer notice in the usual way under her contract of employment, or the statutory notice, if there
is no notice provision in her contract of employment
If the employee cannot return to work at the end of her maternity leave due to sickness, then this
should be treated in the same way as any other employee’s sickness, and the contractual sickness
pay provisions (if any) would apply. If the employee is suffering from maternity related sickness
(such as postnatal depression) take advice before considering dismissal as this may amount to sex
discrimination.
Employees now have the right to request flexible working if they care for a child up to and including
the age of 17 years old, or 18 if the child is in receipt of disability living allowance (DLA). It is
possible therefore that upon returning from maternity leave, an employee may submit a request for
flexible working. This should be considered carefully (please see the guidance note for Flexible
Working).
Employees may also request a period of unpaid parental leave (please see the guidance note for
Parental Leave).
7.
Health and Safety
Employers should have in place a general risk assessment if they employ women of childbearing
age. Employer’s must also carry out a specific and personal risk assessment of the work being
carried out by each new and expectant mother. A failure to do so may result in a claim being issued
for sex discrimination.
If a risk is identified that could jeopardise health and safety of new or expectant mothers or their
babies the employers should consider removing hazards or preventing exposure to the risks.
If this is not possible, then steps must be taken to protect health and safety such as:

Changes in working conditions or hours;

Offers of suitable alternative work;

Suspension from her work with pay for as long as is necessary.
Employers should bear in mind that, if the woman feels there was suitable alternative work and she
was suspended inappropriately, she would be entitled to make a complaint to an employment
tribunal.
Again, there is no length of service requirement for her to bring such a claim.
Employers are obliged to provide suitable facilities for breastfeeding mothers to rest (including to lie
down) and provide adequate rest and meal breaks.
8.
Reasonable contact and keeping in touch (KIT) days
During maternity leave employers are permitted to maintain reasonable contact with employees.
Reasonable contact will depend on the particular case therefore it may be best to agree with the
employee roughly how often and the method of contact she would prefer. It is particularly important
that a woman on maternity leave is informed of any changes that may affect her terms and
conditions, be consulted regarding redundancy or TUPE transfers and be informed of any
vacancies within the company otherwise she will be able to pursue a claim in the employment
tribunal.

All women on maternity leave are entitled to take up to ten keeping in touch days throughout
the length of their maternity leave.

Employers cannot force women to use their KIT days and employees must obtain agreement
from the employer before they can use a KIT day.

KIT days cannot be taken during Compulsory Maternity Leave.

Employees must be paid for KIT days, usually this would be their contractual rate of pay,
however anything paid to the employee is automatically offset against the amount of SMP
they would receive that week. It may therefore be wise to ensure that the employee is aware
of this prior to her agreeing.

KIT days can be used for any purpose such as attending training courses, meetings or
simply to ease back into work prior to her return.
9.
Maternity and holiday pay
Women on maternity leave continue to accrue annual leave whilst absent from work. For example,
women whose annual leave entitlement is 28 days per year taking 52 weeks maternity leave will have
accrued 28 days leave by the end of their maternity leave that they need to take. It is common practice for
women to tag their annual leave on to the beginning or the end of their maternity leave as they are unable
to take paid annual leave whilst on maternity leave. It is therefore advisable that you consider this as soon
as you are notified that a female employee is pregnant and discuss the options with her in advance. A
failure to allow her to carry over her annual leave so that she effectively loses out on paid annual leave
could result in a claim for discrimination on the grounds of pregnancy, maternity or childbirth.
10.
Shared leave
From 2015 the government plans to introduce a new system of statutory parental rights whereby both
parents will be able to share between themselves the 52 weeks maternity leave and pay that is currently
only available to women.
© DAC Beachcroft LLP
March 2014