Maternity Rights During Employment

When an employee becomes pregnant, they have certain rights and may be eligible for some benefits. It is important that employers honour the statutory rights of pregnant employees to ensure that they conduct themselves in a legal manner. There are also provisions made for adoptive parents and authorised requests for additional support. The following guide details what rights pregnant employees are eligible to, how to claim those rights and any relevant additional considerations.

Statutory Rights

When employees take time off work to have a baby, they may be eligible for the following:

• Statutory Maternity Leave
• Statutory Maternity Pay
• Paid time off for antenatal care
• Protection of employment rights whilst on maternity leave
• Additional government support

Statutory Maternity Leave

Employees are currently entitled to 52 weeks statutory maternity leave, as long as they have worked continuously for a 26 week period, prior to the 15th week before the expected week of childbirth. Employees are obliged to provide notice of their intention to take statutory maternity leave. The current notice period is 15 weeks before the beginning of the week that the baby is due. Employers are entitled to know that an employee is pregnant, when the baby is due and when maternity leave is likely to commence. If the commencement date of maternity leave is to change, 28 days notice should be given to an employer.

Statutory Maternity Pay

Statutory Maternity Pay (SMP) is currently paid for up to 39 weeks. Employees receive 90% of their average weekly earnings before tax for the first 6 weeks. Thereafter, the pay is either £139.58 or 90% of weekly earnings, whichever is lower. Statutory Maternity Pay usually begins when maternity leave commences. Parents who opt to take Shared Parental Leave are entitled to the same figures above on a shared basis.

Statutory Maternity Pay commences automatically if the employee is off work due to a pregnancy related illness in the 4 weeks before the week that the baby is due.

If an employee decides to return to work early, their SMP remains unaffected for the first 10 days. Thereafter, SMP payments will stop.

Eligibility

There are certain criteria that must be met in order for statutory maternity leave and pay to be granted. They include:

To qualify for Statutory Maternity Leave, an employee must:

• Be an employee, not a ‘worker'
• Give the employer the correct notice

There are no prerequisites on hours worked, length of employment or pay levels to achieve statutory maternity leave.

To qualify for Statutory Maternity Pay, an employee must:

• Earn at least £112 on average per week
• Give the correct notice to the employer
• Prove pregnancy to the employer

The employee must have worked for the employer for at least 26 consecutive weeks up to the 15th week before the expected week of childbirth.

Statutory Maternity Pay will not be paid to any recipient who is taken into police custody during the maternity pay period. Furthermore, the SMP will not restart upon discharge from police custody.

Statutory Maternity Pay will still be paid if a baby is born early, is stillborn after the start of the 24th week of pregnancy or dies after birth.

Employees who are not eligible for SMP must be informed by their employer through being given an SMP1 form. The form must be given to the employee within 7 days of the decision being made.

Maternity Allowance

Maternity Allowance is normally paid to people who do not qualify for Statutory Maternity Pay.

Maternity Allowance can be claimed as soon as the 26th week of pregnancy and payments can begin 11 weeks before the due date of the baby.

Maternity Allowance is paid every 2 or 4 weeks, directly into a bank account. Depending upon eligibility, Maternity Allowance will either be:

• £139.58 per week or 90% of average weekly earnings, whichever is less, for 39 weeks.
• £27 per week for up to 14 weeks.

Maternity allowance can be claimed by completing the MA1 form and returning it with proof of income, proof of the baby's due date and the SMP1 form if SMP was refused. Further information on the Maternity Allowance is available at www.gov.uk.

Additional Requests

Employers are only obliged to ensure that their employees receive statutory allowances and any contractual terms that have been laid out. However, employees do have the right to request additional support, although their employer does not have to agree. One of the most frequent requests received is the request for flexibility in working hours. Pregnant employees have the right to make the request and in turn, the employer must respond in the correct way. This includes:

• Hold a meeting with the employee within 28 days of receiving the request
• Notify the employee of the decision within 3 months unless agreed otherwise.
• If rejected, the employer must detail the business reasoning behind the decision.
• Offer the right to appeal if the request is rejected.

What Happens if an Employee Faces Redundancy During Maternity Leave?

When maternity leave ends, employees have the right to return to their original job. If a redundancy situation arises when an employee is on maternity leave, the employer is legally allowed to ‘positively discriminate'. Employees on maternity leave have the right to be offered a suitable alternative vacancy if there is availability, and the employee will not be required to have an interview for that role. This is a right that is not given to other employees who are not on maternity leave and so in effect, employees on SML jump the queue. If an alternative role is not available, employees may be entitled to redundancy pay.

Unfair Treatment

Any employee who feels that they have been treated unfairly due to their pregnancy may be able to proceed with a claim for sex discrimination against their employer. If pregnancy or maternity is the sole reason for dismissing an employee, there will be a case for unfair dismissal.

Cases for unfair dismissal based on pregnancy or maternity related issues are classed as automatically unfair reasons for dismissal. This means that a claim for unfair dismissal will not require the employee to have worked for their employer for a set amount of time (the qualifying period) or work a set number of hours. Further details on dismissal from work is available from The Citizens Advice Bureau.