Welcome to this week’s HR Blast where we take a look at some FAQs around managing pregnancy and maternity. So why not up your knowledge or check your facts with our guidance which is followed by a few relevant case law examples!
My employee has just announced she’s pregnant, what do I do next?
Employees are required to notify the Company of their intention to take maternity leave by the 15th week before their expected week of confinement (EWC) and so this will be the next step. They will need to advise you:
- The week their baby is expected to be born.
- When they want their maternity leave to start.
When an employee informs you of their intention to take maternity leave after learning of their pregnancy, they should not be treated any differently than usual however ‘challenging’ their news is to you. Whilst many managers will be delighted with the news, if this is not you, be careful not to take out your frustration on them.
It is also not uncommon that a manager intending to start performance managing a woman is then stopped in their tracks when she announces she is pregnant. Again, this is frustrating but you need to tread very carefully and get advice if you wish to begin a performance management process.
If you are taken to the Employment Tribunal by an employee claiming unfair treatment as a result of announcing a pregnancy, this might cost you a lot of money (if you want to read more, see Redmans case study below).
Note: Any employee who is dismissed while pregnant or on maternity leave is entitled to a written statement of reasons for the dismissal, irrespective of length of service and without having to make a request. Don’t get caught out!
My employee wants to change the start date of when she wants to take maternity leave, can she do this?
Yes, she is entitled to change her mind about when she wants to start her maternity leave, providing she advises the Company at least 28 days in advance.
If she is changing it on medical advice though, we wouldn’t advise you argue that she has failed to give you 28 days notice!
I have just received the form MAT B1 from my employee what do I need to do to action this?
The MAT B1 (which states the expected date of birth) is issued by the midwife or doctor around the 20th week of pregnancy. If she doesn’t give it to you, chase it as it is your right to see this form. Occasionally you will find the form provides a different date of expected birth to the one provided earlier by your employee so don’t just file it without checking!
Do I need to conduct a risk assessment for my pregnant member of staff?
Yes, it is good practise to carry out a risk assessment, and if the job or any of your employee’s duties are identified as carrying any risk for the employee or her unborn child, she should be notified immediately and all reasonable arrangements must be made to remove the employee from those risks.
If you identify a risk but your employee says they wish to carry on irrespective of the risk, we recommend you contact us for clear advice as H&S penalties should not be taken lightly and at all times you have a legal duty of care to your employee … no employee can waive this even if they want to.
Are pregnant employees entitled to paid time off to attend antenatal appointments?
Yes, reasonable time off with pay is allowed for the purposes of antenatal care advised by a doctor or midwife provided that the employee provides evidence of an appointment before the appointment (except for the first ante natal appointment, which the employee can attend first and provide evidence later).
It is of course your right to say so if you feel that an unreasonable amount of time off is being taken or if appointments are not being booked at a time that creates least disruption to work. Be assertive but do not make assumptions about what is in the control of the employee when booking appointments.
Is my employee entitled to statutory maternity pay (SMP)?
If your employee has been employed by the Company for 26 weeks, 15 weeks before the week in which her baby is due (the qualifying week) and her earnings are above the lower earnings limits, she will be entitled to Statutory Maternity Pay (SMP).
If she has been employed for less than 26 weeks she will qualify for maternity leave, but not for maternity pay.
How is statutory maternity pay paid?
SMP is paid for a maximum period of 39 weeks and is paid in the same way and at the same times as normal salary.
Maternity pay is paid at 90% of normal earnings for the first 6 weeks of the maternity leave period and then 33 weeks at the SMP flat rate which is reviewed in April of each year, or 90% of average weekly earnings if this is less than the SMP rate.
If my employee isn’t entitled to statutory maternity pay (SMP) does she receive any pay at all?
If your employee is not entitled to SMP, she may be entitled to receive Maternity Allowance which can be claimed from The Department of Work and Pensions by completing form MA1 which is available online. She would do this herself and there is no need to involve you, her employer.
How long is the maternity leave period?
Employees are entitled to 52 weeks’ statutory maternity leave. This comprises of 26 weeks’ Ordinary Maternity Leave (OML), immediately followed by 26 weeks’ Additional Maternity Leave (AML).
When can my employee start her maternity leave?
The earliest date she can commence her maternity leave is 11 weeks before the expected date of confinement (EWC), although she will not be required to take any maternity leave before the birth if she does not wish to do so. However, maternity leave will start automatically on the day following the birth if the baby is early.
If your employee is absent from work for a pregnancy related illness during the 4 weeks before the start of her EWC, her maternity leave will start automatically, regardless of the date she intended to start her maternity leave.
Managing pregnancy & maternity case studies:
Can you make a pregnant worker redundant?
There is case law relating to employers being able to include pregnant workers in collective redundancies: Guisado v Bankia SA and others (ECJ). This was a Spanish case that went to the European Court of Justice (ECJ).
The ECJ confirmed that a pregnant worker who has been genuinely selected for redundancy for reasons unrelated to her pregnancy, can be made redundant. But remember the UK law requires employers to go above and beyond in identifying suitable alternative work for any pregnant employees being made redundant.
Employer reacts badly to being informed about a pregnancy
Redmans Solicitors successfully represented a client in her claim for pregnancy and maternity discrimination in the Employment Tribunal. The employee informed her company of her pregnancy and the business owner then commented that she had only just returned from 12 months maternity leave (during which she had received full salary). They also were said to have then become aggressive over very minor issues. She was awarded £37,500.
Be careful in your interactions with someone who is pregnant and/or recently returned from maternity leave
In a case taken by Martin Searle Solicitors, the employee said she had been treated unfairly and unfavourably by both colleagues and manager after the birth of her first baby. She then miscarried her second pregnancy and said that her manager was insensitive. She raised a grievance but it was not upheld. She said she felt excluded on her return to work. This continued when she announced she was pregnant again. During a company restructure, to avoid redundancy, she applied for another role given her rights to do so as a maternity returner, but she was not successful. A second grievance was raised, but the case eventually went to tribunal. She was awarded £25,000.
We support our clients in plain English, minimal jargon, and always take a common sense approach. Plus no contract required as we offer a pay as you go service. It couldn’t be simpler to get going when you need urgent advice. Get in touch.
The information contained within this article is for general guidance only and represents our understanding of employment and associated law and employee relations issues as at the date of publication. Jaluch Limited, or any of its directors or employees, cannot be held responsible for any action or inaction taken in reliance upon the contents. Specific advice should be sought on all individual matters.