By Euan Lawrence, Associate Solicitor in the Employment Team at Blacks Solicitors LLP
Over the past 45 years, there has been a significant volume of legislation aimed at protecting the rights of women in employment. This article summarises some of these rights, particularly those relating to childbirth and childcare responsibilities.
All pregnant employees are entitled to 52 weeks’ statutory maternity leave and protection from being dismissed as a consequence of such maternity leave. That leave will be unpaid unless the employee qualifies for statutory maternity pay (SMP). To qualify for SMP you must: have 26 weeks’ continuous employment with your employer up to and including the 15th week before the expected week of childbirth (EWC); and your average earnings in the 8 weeks leading up to the EWC must be at least the lower earnings limit for National Insurance (currently £112 per week). If you qualify for SMP you will receive: 90% of your average earnings during the first 6 weeks of your maternity leave; and a prescribed rate (currently £139.58) for up to 33 further weeks of maternity leave (whilst employees are able to take 52 weeks’ maternity leave, there is only a statutory entitlement to be paid in respect of the first 39 weeks of this period).
Rights before taking maternity leave
In addition to the right not to be discriminated against on grounds of pregnancy or maternity, pregnant employees also have several important rights before they begin maternity leave. These rights apply to all pregnant employees, regardless of length of service. Pregnant employees have the right to paid time off for antenatal appointments. Additionally, if an employee suffers from a pregnancy-related illness she must not be treated unfavourably as a consequence (this would be considered unlawful). The employer also has health and safety obligations and should carry out a risk assessment as soon as practicable.
Rights during maternity leave
By law the first two weeks after childbirth must be taken as maternity leave (this is extended to four weeks for factory workers). During maternity leave an employee will continue to benefit from various statutory protections. For example, if a redundancy situation arises which affects that employee’s role, the employee on maternity leave will have priority over her colleagues who are not on maternity leave when it comes to offering suitable alternative roles. Additionally, in order to ensure that there is communication between employee and employer during maternity leave the law provides that employers should ensure that there is “reasonable contact” during this period. This is on top of the employer’s obligations to offer up to ten “Keeping in Touch” (KIT) days during a period of maternity leave, during which the employee can carry out work for the employer (there is no absolute entitlement to be paid for this work, but it is usual). During maternity leave annual leave will accrue. It is usual for this to be taken immediately before and/or immediately after maternity leave.
Rights upon returning from maternity leave
Employees who wish to return to work either earlier or later than agreed at the outset can do so by giving their employer eight weeks’ notice. Where an employee has taken not more than 26 weeks’ maternity leave (known as “ordinary maternity leave”) she has an absolute entitlement to return to the same job in which she was employed before maternity leave. If the employee has taken a period of more than 26 weeks’ maternity leave (and has entered into what is known as “additional maternity leave”) then she will generally still be entitled to return to her old role except in circumstances where it is “not reasonably practicable” to allow her to return to it in this case the employee will be entitled to return to a different job which is suitable for her and on terms and conditions which are no less favourable.
Whilst the right to make flexible working requests is no longer a right that is only available to employees who have childcare commitments, it seems probable that new mothers will be most likely to make these requests. It is now the case that any employee with 26 weeks’ service can make a formal application to their employer for their working pattern to be changed. The employer must then deal with the request in accordance with the principles set out in the code of practice and guide to flexible working requests produced by ACAS. Only one such request can be made in each calendar year.