The latest Equal Opportunities Commission statistics reveal that 440,000 women a year face discrimination at work while pregnant or on maternity leave, with up to 30,000 losing their jobs as a result, this is despite over 25 years of sex discrimination legislation; HR Consultant Sandra Beale explodes the maternity myths.
These statistics represent a lack of knowledge by employers of managing pregnancy and maternity in the workplace.
Pregnant women have various statutory maternity rights including rights to maternity leave, maternity benefit, time off for ante-natal care, health and safety and unfair treatment and dismissal protection.
The right to maternity leave is extended to all women regardless of length of service. Currently ordinary maternity leave (OML) is 26 weeks. A period of additional maternity leave (AML) of 26 weeks is then available to those employees who have been employed for 26 weeks at the 15th EWC (expected week of confinement).
For those employees with the minimum continuous service OML is paid at 9/10 of salary for the first six weeks then 9/10 of salary or £106 (increased on an annual basis), whichever is the lowest for the next 20 weeks. Maternity allowance is available for 26 weeks to those employees who do not qualify available through the DHSS. There is no statutory right to payment for the AML period.
The employment contract and full benefits (except salary) continues in full throughout the period of OML, which includes continuous service and annual leave. For the period of AML the contract also continues in full although certain benefits may not necessarily continue such as use of company car and mobile phone, this depends on the employer’s policy.
Within the legislation is the requirement for compulsory maternity leave whereby a woman having given birth should not return to work for two weeks (four weeks if a factory worker).
Consecutive pregnancies should be treated in exactly the same way as the first.
Paid time off for antenatal care should be available which includes visits to doctors, midwives, hospital and childcare classes. Employers have the right to ask for proof of appointments.
Health and safety is paramount and employers are legally required to conduct a risk assessment on the working area/practices of the pregnant employee. If there is any danger to her or her unborn child the employee should be given alternative employment or suspended on the same rate of pay and contractual benefits.
Unfair treatment due to maternity at any time is unlawful and redress can be sought through the tribunal courts. Likewise a pregnant woman should not be dismissed or selected for redundancy by reason of her condition.
That is not to say that an employer can not dismiss or make redundant a pregnant employee. Should there be a need to select individuals for redundancy, which may include the pregnant individual, a fair selection criteria and procedure should be followed which could be defended at tribunal should there be an unfair dismissal claim. The statutory dismissal procedure should be followed in all cases.
The pregnant employee should notify their employer in writing by the 15th EWC of their pregnancy advising that they are pregnant, submitting the MAT B1 provided by the midwife and advising when they plan to commence maternity leave (which always starts on a Sunday).
The employer in turn should acknowledge the letter in writing within 28 days, advising the date when the ordinary maternity leave or, if relevant, additional maternity leave period ends.
Once the baby is born, if the employee wishes to return earlier they should write to the employer giving 28 days notice. The employer should acknowledge this and could postpone the return if it is not convenient. If the employee does not wish to return they are obliged to give the contractual notice period.
The employee has the right to return to the same job on the same terms and conditions. Should their job not exist when they return the employer is obliged to offer them suitable alternative employment, also on the same terms and conditions.
Such a situation should be negotiated prior to the return of the employee ideally by having a meeting. The employee also has the right to request flexible working and this is seriously considered. The right to parental leave and time off for dependents will also apply.
For further information useful websites to consult are DTI, Acas and the interactive Tiger.
Sandra Beale of SJ Beale HR Consult can be contacted on T: 07762 771290 and for further information see www.sjbealhrconsult.co.uk
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