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Pregnancy, maternity and adoption

16 April 2004 by
Pregnancy, maternity and adoption

In line with the development of social policy in western Europe, the UK has brought in some very comprehensive family-friendly legislation. Included in this are many rights for the protection of pregnant employees.

What extra rights do pregnant workers have?

As soon as a woman becomes pregnant she is entitled to enhanced legal protection.

While she is at work during her pregnancy a female employee is entitled to:

  • Enhanced protection on grounds of health and safety if the work in which she is involved exposes her or her unborn child to risk of injury. If the risk cannot be removed, or if the employer is unable to provide suitable alternative work for the employee, then she is entitled to be suspended from work on full pay for as long as necessary to protect her and her unborn child.

What rights do they have to time off?

All pregnant employees are entitled to maternity leave, although the amount of leave depends on their length of service. There are three categories of maternity leave:

  • 26 weeks' Ordinary Maternity Leave regardless of length of service.
  • An additional period of 26 weeks called Additional Maternity Leave for women who, by the 15th week before their Expected Week of Childbirth (EWC), have 26 weeks' continuous service with their employer.
  • Two weeks' Compulsory Maternity Leave during the two weeks immediately after the birth, during which period it is illegal for the employer to allow the employee to return to work. This period is usually absorbed into Ordinary Maternity Leave.

What notice period do they have to give me?

To qualify for Ordinary Maternity Leave the employee must notify her employer by the 15th week before the EWC, or as soon as reasonably practicable, of:

  • the fact that she is pregnant
  • the date of her EWC (and provide a medical certificate supporting this if the employer asks for one)
  • the date on which she intends to start her leave.

When does maternity leave start?

The woman chooses when she wants her Ordinary Maternity Leave to start, but this cannot be earlier than 11 weeks before the EWC. If she is absent from work for a pregnancy-related reason during the four weeks before her EWC, then the employer may trigger the start of her Ordinary Maternity Leave regardless of the woman's wishes.

If the woman is entitled to Additional Maternity Leave, it will be presumed that she intends to exercise her right to this unless she notifies her employer that she intends to return early.

Who qualifies for maternity pay?

Statutory Maternity Pay (SMP) is payable by the employer to all qualifying employees for a period of 26 consecutive weeks.

A qualifying employee is a pregnant woman who has:

  • worked for the employer for a continuous period of at least 26 weeks ending with the Qualifying Week, namely the 15th week before the EWC, and
  • whose average weekly earnings during the eight weeks up to and including the Qualifying Week have been at least equal to the lower earnings limit for national insurance contributions.

SMP is payable regardless of whether the employee intends to return to work.

How much do I have to pay them?

There are two rates of SMP:

  • the higher rate, payable during the first six weeks of Ordinary Maternity Leave at a rate of 90% of the employee's average weekly earnings (or at the SMP flat rate if this is higher).
  • the flat rate of SMP for the remaining 20 weeks at a rate set by the Government, currently £102.80 a week.

SMP payments are subject to the normal deductions for tax and national insurance.

When do I stop making payments?

Statutory Maternity Pay (SMP) ceases to be payable if the employee:

  • does any work for an employer
  • returns to work
  • is placed in legal custody or sentenced to imprisonment
  • dies.

Can I claim the money back from the Government?

Employers can recover 92% of Statutory Maternity Pay (SMP) they have paid out, by adjusting their PAYE and national insurance contributions. Small employers, whose total gross national insurance contributions from the previous tax year were £40,000 or less, may recover 100% of SMP, plus 4.5% of SMP paid as compensation for the administration involved.

What about miscarriages and still-births?

A woman who suffers a miscarriage before the end of 24 weeks of pregnancy is not treated as being absent due to childbirth and no SMP is payable. If a still-birth occurs after 24 weeks of pregnancy, then this is regarded as a birth and SMP is payable as long as all the qualification criteria are met.

Are there any additional health and safety considerations?

Employers must conduct an assessment of the risks to health and safety of women who are or are likely to become pregnant, or who have recently given birth and/or are breast feeding. For example, an assessment must take into account factors such as evidence that pregnant women are prone to ill-effects caused by extremes of heat and cold. This is particularly relevant to the hospitality industry. Long periods in extremely hot or cold conditions (for example, stocking coldrooms or working near a hot oven) may have to be avoided if women are not to be exposed to unnecessary risk.

Again, employers should consider:

  • temporary adjustments to working hours or conditions
  • offering suitable alternative work if available
  • if neither option is feasible, suspension from work for as long as necessary to protect the health and safety of the woman and/or her child.

There must be no adverse effects on the employee's terms and conditions if any adjustments are made.

Can I sack a pregnant woman?

The EC Pregnant Workers Directive prohibits the dismissal of women for any reason connected to pregnancy during the period from the beginning of their pregnancy to the end of their maternity leave. All female employees, regardless of service or hours worked, have a right not to be dismissed on the grounds of pregnancy, for a pregnancy-related reason or for a reason relating to birth or maternity leave. If dismissed on such grounds, their dismissal will be automatically unfair. However, if the reason for dismissal is not related to the pregnancy, (for example, on grounds of conduct) then a dismissal may be fair.

If, during maternity leave, a woman's role becomes redundant, then the employer must offer her any available alternative work that is suitable and appropriate for her to do in the circumstances. She is effectively placed in a more favourable position than other workers, as she must get preference. If suitable alternative work is not offered, she will be treated as having been automatically unfairly dismissed.

Do part-timers have the same rights as full-timers?

Part-time employees are entitled to the same provisions for maternity benefits as their full-time counterparts and discrimination on grounds of part-time status is unlawful.

Are women entitled to come back and work part time after having a baby?

Although it is common for a woman to ask to return to work part-time following maternity leave, there is no automatic right. However, if an employer fails to consider such a request, that could amount to indirect discrimination on grounds of sex.

An insistence that the job can only be fulfilled on a full-time basis may be challenged on the grounds that, because mothers have additional family responsibilities, the requirement to work full-time would have a disproportionate effect upon women, who could be forced to give up work as a result.

An employer may be able to justify a requirement that the job be full-time as long as sound business reasons exist. An objective balance needs to be struck between the reasonable needs of the employer and the resulting detriment suffered by the employee. Relevant factors include the size and financial resources of the business, the type of work being done and the efforts made to accommodate the request for part-time working. The greater the degree of harm or damage to the individual, the stricter the requirement to justify the business need.

What about paternity leave?

An employee will qualify for paternity leave if he:

  • is to have responsibility for the newborn child's or newly adopted child's upbringing
  • is the biological father, the mother's husband or partner or the adopter's partner
  • has worked continuously for his employer for 26 weeks by the end of the week preceding the 14th week before the baby is due.

What is the paternity leave entitlement and statutory paternity pay?

An eligible employee is entitled to take either one week or two weeks' paternity leave and will be paid £100 a week or 90% of average weekly earnings if this is less than £100.

Notice requirements

Employees are required to inform their employers of the intention to take paternity leave by the 15th week before the baby is expected, unless this si not reasonably practicable. They will need to tell their employers:

  • the week that the baby is due or the time when the adoption placement is due to begin
  • whether he wishes to take one or two weeks' leave
  • when he wants his leave to start.

What is the right to adoption leave?

Since 6 April 2003, a parent who adopts a child can take adoption leave at the time of the child's placement. The aim of this leave is to allow parents to have time at home with the child in the months following placement.

What is the adoptive parent's entitlement?

An employee (either the adoptive mother-to-be or father-to be, not both) is entitled to Ordinary Adoption Leave (OAL) of 26 weeks if the employee is newly matched with a child for adoption by an approved adoption agency. The employee must have worked for the employer for 26 weeks ending the week in which they are notified of being matched with a child for adoption. Where an employee is the partner of the person adopting a child and the partner is taking OAL, the employee is entitled to take two weeks' paternity leave (see above).

Employees must inform the employer of their intention to take adoption leave within seven days of being notified by the adoption agency that they have been matched with a child for adoption.

Employees should also set out in writing when they want OAL to begin.

Employees are entitled to the benefit of normal terms and condition of employment throughout the leave period with the exception of wages or salary unless the contract of employment provides otherwise.

The right to return to work

Employees are entitled to return to exactly the same job following OAL, on terms and conditions no less favorable than those that would have applied had the employee not taken the leave. Employees who want to return to work before the end of OAL must give their employers 28 days' notice of the date they intend to return to work.

If a redundancy situation arises during OAL, then where suitable alternative employment exists, the employee is entitled to be offered that job.

Additional adoption leave

An employee with 26 weeks' continuous service beginning on the day after the last day of his or her OAL period can take an additional period of 26 weeks' Additional Adoption Leave.

Statutory Adoption Pay

Statutory Adoption Pay (SAP) is available to an employee with 26 weeks' continuous service by the end of the week in which he or she is notified of a match with a child.

SAP is paid by the employer for up to 26 weeks. SAP is paid at the same rate as SMP i.e. £100 a week or 90% of average weekly earnings if this is less than £100.

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by Mariangela Milioto
Mariangela Milioto is a solicitor in the employment department of law firm DLA.

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