Until 1975, women were routinely sacked for becoming pregnant. Then in 1975, the Employment Protection Act came into force which provided the first maternity leave for women. But because of the super long qualifying periods, around 50% of women were not eligible for maternity leave for 15 years after the act was introduced!
So in actual fact, it wasn't until 1993 that maternity rights were extended to all working women. 1993!!
Thankfully the law has come on in leaps and bounds to support pregnant women and mothers. So here's the lowdown on maternity leave.
During Pregnancy
All employees are entitled to reasonable paid time off to attend antenatal care, midwife/consultant appointments, relaxation and parenting classes. After the first appointment, employers can request evidence of these appointments.
It is unlawful to refuse a mother time off for such appointments unreasonably or subject her to a detriment or unfair treatment because of her request for time off. Employers cannot ask employees to make the time back.
Your employee should notify you of their pregnancy as soon as they are comfortable to. Upon notification, you should complete a pregnancy risk assessment if the work could lead to harm or danger to the health and safety of the mother and/or the baby.
If the employee has been medically advised to refrain from certain work tasks or from working night shifts, you must follow this advice.
Pregnancy related absences should be managed with care. Any unfavourable treatment such as disciplinary action or dismissal would amount to pregnancy and maternity discrimination. That being said, that doesn't mean you should ignore pregnancy related absences. If any employee is having lots of time off due to her pregnancy, ensure you complete return to work meetings on her return and discuss any adjustments which could be made to support her.
Employees are not entitled to full pay for pregnancy related absences, so you can follow your normal sick pay procedures without it being sex discrimination.
Notification
Employees must notify their employers of their intention to take maternity leave by the end of the 15th week before the baby is due, unless this is not reasonably practicable. This is called the Expected Week of Childbirth (EWC).
The employee should provide you with a MAT B1 form which she will receive from her midwife and she should also confirm that she is pregnant, the week her baby is due and when she would like her maternity leave to start. Maternity leave can start no more than 11 weeks before the EWC.
During Maternity Leave
Maternity leave is split into 26 weeks of Ordinary Maternity Leave (OML) and 26 weeks of Additional Maternity Leave (AML). Employees are entitled to both from day 1 of employment.
Employees qualify for Statutory Maternity Pay if they have 26 weeks continuous service at the 15th week before the EWC.
If an employee gives birth to a living child, even if it is born before 25 weeks of pregnancy, she is still entitled to her usual maternity leave and pay. This applies even if the child later passes away.
Employees who suffer a stillbirth or miscarriage earlier than the 25th week of pregnancy are not entitled to maternity leave or pay. Any time off work should be treated as a normal absence and the usual sick pay procedure apply.
Employees who suffer a stillbirth after 25 weeks of pregnancy are entitled to maternity leave and pay.
During maternity leave, the employee's contract of employment continues to apply. She is entitled to receive all contractual benefits except salary, such as holiday entitlement, gym memberships, health insurance, company car etc.
Although the employee cannot take holiday during a period of maternity leave, you can agree to extend her maternity leave by tagging accrued holiday on the beginning or the end of the maternity leave.
Employees on maternity leave are entitled to 10 Keeping In Touch days (KIT days) during maternity leave without losing maternity pay or bringing leave to an end. These can be used for training, conferences, work, or to ease into returning to work. Employers cannot demand KIT work is undertaken and the employee has no right to be offered KIT work.
Maternity Pay
Statutory Maternity Pay (SMP) must be paid by the employer to eligible employees regardless of the employee's intention to return to work after maternity leave.
To qualify for SMP the employee must have:
completed 26 weeks' continuous service at the 15th week before the expected week of childbirth (known as the qualifying week)
average earnings of at least the lower earnings limit for National Insurance contributions (£120 per week from 6 April 2020 - staying the same from April 2021) in the eight weeks before the qualifying week
given her employer at least 28 days' notice of the date on which she wants the payment of SMP to begin (or as soon as reasonably practicable if it is not reasonably practicable to give 28 days' notice)
provided evidence of her expected week of childbirth (normally the MAT B1 certificate).
SMP is paid for a maximum of 39 weeks.
The first 6 weeks leave are paid at 90% of the employee's normal weekly earnings. The remaining 33 weeks are paid at a flat rate of £151.97 (from April 2021) or 90% of the employee's normal weekly earnings, whichever is lower.
Employees who plan to take leave following a period of furlough will have their pay calculated on their usual earnings, pre furlough.
If any employee doesn't qualify for SMP, she may qualify for Maternity Allowance which is claimed through Job Centre plus.
Returning to Work
Employee's cannot return to work before the end of their compulsory 2 or 4 week maternity leave. However they have the automatic right to return to work at the end of their maternity leave or sooner, providing 8 weeks notice is given to the employer.
Employees returning to work at the end of their OML have the right to return to the same job on the same terms and conditions as if she had not been absent.
Employees returning to work at the end of their AML have the right to return to the same job. However if this is not reasonable practicable, an alternative job can be offered. This must be on terms and conditions that are no less favourable than the terms that applied before maternity leave.
If the employee does not wish to return to work, she must give the employer her usual contractual notice.
Often, employees ask to return on a part time or flexible basis after maternity leave. In this instance you should follow your usual Flexible Working Procedure.
There is a lot of legislation covering pregnancy and maternity rights - I could go through them all here but it'll be more of an essay than a blog! These processes need to be handled correctly to avoid claims of pregnancy, maternity and sex discrimination.
If you aren't sure how to manage pregnancy and maternity, just give me a shout!
Shona x