The experts, Adam Partington and Esther Smith advise on how to handle successive pregnancies which seemingly overlap…

The question: Pregnant again while on maternity leave?

If an employee becomes pregnant again while on maternity leave, does she have to be put back on full pay during her pregnancy (her job is one that cannot be done by a pregnant woman) in spite of the fact that she has not returned to work? Would it be better for her to return to work in a different role for the term of her pregnancy, if one is available? And presumably she gets another period of maternity leave after the second birth?

If the employer has no other work available and dismisses her because she is unable to carry out her contract, would this be automatically unfair dismissal?

Legal advice:
 

Adam Partington, solicitor, Speechly Bircham

The starting point is that ordinarily in this situation one would expect the current maternity leave to run its course with whatever entitlement to maternity pay exists and for the employee to return to work in the ordinary way at the end of that maternity leave. She would then commence a new period of maternity leave in the ordinary way in respect of the second pregnancy.  It is only where there are concerns as to her ability to return to the old job for health and safety reasons, or where the second maternity leave in effect commences before the end of the first that there may be complications. There may also be implications in relation to the calculation of statutory maternity pay. You really do need to seek advice on the particularities of those circumstances.

In terms of returning to work after maternity leave, generally the employee will be entitled to return to the same job in which she was employed before her absence. You state that the employee’s job is one that cannot be done by a pregnant woman, however it is not clear whether this is on health and safety grounds. Assuming that it is on health and safety grounds, employers owe a duty to protect the health and safety of their employees and particular rules apply to new or expectant mothers in the workplace.

In summary, the law requires employers to: (i) assess the workplace risks posed to new or expectant mothers or their babies; (ii) alter the employee’s working conditions or hours of work to avoid any significant risk; (iii) if that is not reasonable, or would not avoid the risk, offer suitable alternative work on terms that are not "substantially less favourable"; (iv) if suitable alternative work is not available, or the employee reasonably refuses it, regulation 16(3) of the Management of Health and Safety at Work Regulations 1999 and section 67 Employment Rights Act 1996 require you to suspend the employee on full pay.

The wording of the legislation refers to suspension of the employee “from work”. I am not aware of case law on this point and so it would seem sensible to conclude that the requirement to suspend does not arise if the employee is still on maternity leave. Nonetheless, even if the employee is still on maternity leave and you have identified a possible risk to the health and safety of the pregnant employee, you should seek specific legal advice on carrying out the steps set out above to ensure that you correctly comply with your obligations. As part of this process you may identify suitable adjustments to the role or a suitable alternative role that the employee could undertake when she returns to work and it would be important for you to allow the employee to exercise her right to return to work even if, having followed the process outlined above, it turns out that the employee then needs to be suspended on full pay on health and safety grounds.

It is automatically unfair to dismiss a woman when the reason, or principal reason, for the dismissal is connected to her pregnancy or statutory maternity leave. It is also automatically unfair to dismiss her during Ordinary Maternity Leave or Additional Maternity Leave for a reason connected to the fact that she has given birth. Therefore if you dismissed the employee because of the fact she was pregnant and unable to carry out her role whilst she was pregnant, it would be an automatically unfair dismissal.

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Esther Smith, partner, Thomas Eggar

This is an increasingly common problem these days with the period of maternity leave being potentially so long. 

The answer to your specific situation will depend on the dates relevant to this employee. If they return from their original period of maternity leave, either at the end of OML or AML or earlier if they have given the prescribed eight weeks’ notice, then they do in theory “return to work”. If they are pregnant at this point, and carrying out their contractual duties places them at health and safety risk, then you would either be obliged to suspend them on full pay pending commencement of their maternity leave or find them alternative duties to carry out that do not pose a risk to their health. If you suspended on full pay for the first maternity period you may struggle to do otherwise this time around.

If the employee has requested a reduction in working hours under the flexible working arrangements then any “full time pay” for the period of suspension, will be the new reduced rate of pay in line with the flexible working request.

The employee does have the right to maternity leave in relation to the second pregnancy, both OML and AML, although their entitlement to SMP may be significantly affected if they have not effectively had any earnings (due to being on maternity leave) during the qualification period over which it is calculated.

To answer your final point, the employer would be very ill advised to dismiss the employee because they could not carry out their contractual duties due to their second pregnancy. This would result in an automatically unfair dismissal claim and a sex discrimination claim too.

Esther Smith is a partner in Thomas Eggar’s Employment Law Unit. For further information, please visit Thomas Eggar.