Category Archives: maternity leave issues

Research into Pregnancy and Maternity Discrimination

pregnancy discrimination

Source: Free Digital Images

It was announced late last year that the Equality and Human Rights Commission (EHRC) is to conduct research into pregnancy and maternity discrimination in the UK.  This will bring the data up to date as the last time research was conducted was in 2005.  It was discovered then that millions of pounds were lost to women in terms of maternity pay as they were dismissed before they could claim it.

From my own experience I would say that pregnancy and maternity discrimination is rife in the UK as I am often contacted by women who are receiving unfair treatment in the workplace whilst they are expecting a baby or are on maternity leave.  Often coming back to work is difficult particularly when flexible working is requested.   Some employers have even said to me off the record that they would not employ a young woman for fear of her going off on maternity leave.

Employment tribunal figures will add weight to my own experience showing that workplace discrimination is increasing. The 2011/2012 annual statistics record that there were 10,800 sex discrimination claims with an additional 28,800 equal pay claims and 1,900 pregnancy related claims. This picture will more than likely be reflected in the e 2012/2013 statistics.  The quarterly statistics for April to June 2013 revealed a 40% increase in sex discrimination claims in that period.

It does not help that the leader of UKIP, Nigel Farage, has recently announced the abolition of maternity pay if the party came to power and that women who take time off to have children are worth less to their employers.  Hardly the views of a progressive political leader in tune with the progressive  modern day thinking.

With the one million pound budget researchers will look at employment practices in the workplace in relation to pregnant women or those on maternity leave to gauge the extent of unequal and unfair treatment to seek the causes and effects. The effect on families and the economy will be examined.

From the findings of the research project the EHRC will assess how best to raise awareness of pregnancy and maternity rights.


Keeping In Touch Days – Guidance for Employers

Statutory maternity leave allows for ten keeping in touch days whereby an employee can go to work without that affecting her statutory maternity pay provided she has a contract of service.  Keeping in touch days are also available to employees who are on adoption leave and additional paternity leave.  The shared parental leave legislation due in during 2015 will add an additional twenty keeping in touch days to an employee’s entitlement.  Keeping in touch days can commence two weeks after a baby is born.  They can be taken in blocks or individual days.

Keeping in touch days can help ease an eventual return to work. They can be used for attending a conference, team or training event or having an appraisal interview for example or even doing some work.  An employee has to agree to work with her employer; her employer can not insist she works.  The arrangements should be made with notice prior to the employee going into work. 

Any work done on a keeping in touch day will be counted as a whole day, this includes even if a employee goes into work for just an hour.  Keeping in touch days can be taken as single days; in blocks of two or more days; or can be taken consecutively. Once an employee has used up the keeping in touch days if they do any further work they will lose a week’s SMP in the maternity pay period in which the work is done.

For any keeping in touch days that an employee works under her contract of service for the employer paying her SMP, the employer must pay SMP due for that week as a minimum. Any contractual payment for the work done as a KIT day, will depend on the agreement between the employee and employer.

If an employee has more than one employer they she is entitled to ten keeping in touch days for them all employers if they all pay SMP due to qualifying criteria. 

An employer should stay in touch with employees on maternity leave, adoption leave or paternity leave and inform them of any promotions, redundancies or changes at work.  This is not a statutory requirement but should be more so because of courtesy and encourages employee engagement.



Shared Parental Leave – Sharing the Parental Load

In April 2015 new rules related to the shared parental leave will come into force as announced by Business, Innovation and Skills (BIS)  The new legislation means that fathers can take more time off work to share in the upbringing of their baby in the following 50 weeks after the birth.  Any shared parental leave fathers take will be in addition to the existing two weeks paternity leave.  Father will soon have the right to two days unpaid to attend ante natal clinics.

A new mother will be able to convert statutory maternity leave and pay into shared parental leave and shared parental pay in the year following the birth of a baby.  Shared parental leave and shared parental pay will also be available to adoptive parents and parents through surrogacy.

There will be a two stage eligibility test.

Stage 1 (the joint test): for an employee to qualify for shared parent leave and shared parental pay, their partner must meet the economic activity test. This means they must have worked for any 26 out of the 66 weeks preceding the baby’s due date and have earned at least £30 gross salary per week for any 13 of those 66 weeks.

Stage 2 (the individual test): In order to be eligible for shared parental leave, the parent must have at least 26 weeks’ continuous service with the same employer at the 15th week before the baby’s due date and still be working for the same employer when they intend to take the leave.

To qualify for shared parental pay, the parent must have earned an average salary of the specified amount, or more (the Lower Earnings Limit – currently £109 per week) for 8 weeks prior to the 15th week before the baby’s due date.

Shared parental pay will be at the statutory level therefore pay for 39 of the 52 weeks will be based on the salary of the parent who is on leave. For the first six weeks the person on leave will receive 90% of his or her average weekly earnings before tax, after that it will be 90% or £136.78 – whichever is lower – for 33 weeks.

Parents will decide how much leave to take, whether they take the time off together or in turns. They have the right to return to the same job as they did before they went on leave provided the  total leave (maternity, paternity and adoption leave) does not amount to more than 26 weeks. If the leave amounts to more than this then they have the right to return to a similar job. 

Employees will need to give a non-binding indication at the outset of when they expect to take the leave.  They will be required to give eight weeks notice to take specific periods of leave, or to change a previous notification.  Employees will be able to take a maximum of three blocks of leave unless their employer agrees to more. Employers will not be able to refuse leave, but they will be able to refuse discontinuous blocks of leave eg if someone asks for two six-week periods of leave, an employer can insist that it is taken as a single 12-week block. Mothers must take a minimum two weeks of maternity leave to recover before they can split their leave with the father.

Parents will be able to have up to twenty ‘keeping in touch’ days at work per parent whilst on shared parental leave.  This well be in addition to the ten keeping in touch days for the mother as provided for in maternity leave legislation.

Employers should review and update their existing policies in the light of this forthcoming legislation.




I’m Pregnant! What Employers Need to Know

I have recently been contacted by several women who feel they have been unfairly treated by their employers because of pregnancy and maternity issues.  It seems that this is an area of employment law that many employers fall foul of possibly unintentionally. 
Pregnant employees or those on maternity leave have many key rights in accordance with employment law.   This includes:
up to 52 weeks maternity leave regardless of length of service (26 weeks ordinary maternity leave + additional maternity leave)
statutory maternity pay (or maternity allowance if length of service is not sufficient)
receipt of full benefits during maternity leave
paid time off for ante natal classes
not to be dismissed for pregnancy or maternity-related reasons, to be offered suitable alternative role in redundancy situations in preference to other employees
protection from discrimination
the right to return to the same job after a period of ordinary maternity leave on the same terms and conditions.  
The latter may be more difficult returning after additional maternity leave but any alternative role should be a reasonable equivalent on the same terms and with the same status.  
Ideally when a female employee announces they are pregnant, a risk assessment should be done particularly if their work could place them and their unborn child at risk eg carrying heavy loads, working in dangerous conditions.
Pregnant employees are required to give their MAT B1 to their employers which they receive at 26 weeks pregnancy.  This indicates the possible expected date of delivery allowing both parties to plan ahead.  The employee can go off on maternity leave at any time from the 11thweek before the expected week of confinement.  They could even work right up to date of delivery although that is not advisable.  Maternity leave can start on any day of the week.  Whilst on maternity leave the legislation allows for up to ten keeping in touch days where the employee can come into work.  This is ideal for training purposes or to remain in touch with key developments in their job.
Whilst on maternity leave they accrue holidays which can be taken after their maternity pay period ends and before they return to work.  
Some employers engage a fixed term worker to cover the maternity post.  The contract should be clear with regards to the purpose of the cover giving a clear termination date.  Employers should beware of preferring to keep the fixed term employee in the role over and above the returning employee.  Any such treatment could be discriminatory.  If the fixed term worker becomes pregnant during their contract they will be entitled to statutory maternity pay with sufficient continuous service and this is payable even after the contract has ended either as a lump sum or subsequent continuous payments. 
Sometimes a female employee may fall pregnant again immediately.  However the law allows for this to happen despite it being frustrating to employers.  They are still entitled to full maternity leave although maternity pay may be affected as this is calculated on previous earnings; if they are below the lower earnings limit statutory maternity pay is not payable.  Contractual maternity pay/sick pay/holiday pay/bonuses/commission will be classed as earnings.
There is a perception that it is legally dangerous to make a pregnant employee redundant.  This is not the case however provided there is a clear reason for the redundancy situation.  Employers should certainly not single out any pregnant employee or employee on maternity leave for redundancy and should beware of other possible discriminatory treatment.  A skills matrix should be used, where appropriate, applying demonstrable fair scores, consultation should be conducted according to the law and the dismissal procedure undertaken fairly and legally.  Statutory maternity pay is payable if continuous service is sufficient and the employee is identified for redundancy.  It is important to remember that employees at home on maternity leave should not be forgotten during a redundancy consultation process – it sometimes happens.    
Employers need to be seen to be treating employees who are pregnant or on maternity leave fairly.  If they fail to do so then the penalty could be huge employment tribunal compensation.

If you need advice with a maternity or pregnancy issue call Sandra Beale on 07762 771290.