I have a worker who has only been with me for a week but has announced she is pregnant. What are my obligations?
The maternity provisions changed in April. The new provisions apply only to employees whose expected week of childbirth (EWC) was on, or is after, 1 April 2007, regardless of when the baby was actually born. The old provisions still apply to employees whose EWC was before 1 April, even if their baby was actually born on or after 1 April.
What has changed?
• The previous length of service qualification period for additional maternity leave has been removed. Now, all employees, from day one of service, are entitled to take 52 weeks' maternity leave.
• Statutory Maternity Pay (SMP) has been extended to 39 weeks (previously 26 weeks). Not all employees are entitled to SMP. To qualify, they must have been employed by you continually for at least 26 weeks before the "qualifying week", which is the 15th week before the EWC. Qualifying employees are entitled to receive 90% of their average weekly earnings for the first six weeks, followed by the standard-rate maternity pay (currently £112.75 per week) or 90% of average weekly earnings, whichever is the lower, for 33 weeks.
• If the employee wishes to return to work earlier than the return date initially given to their employer, they must now give eight weeks' (previously 28 days') notice.
• Employees on maternity leave can now work for up to 10 days ("keeping-in-touch days") during maternity leave and be paid for those 10 days, without affecting their right to maternity leave and/or pay.
An employer must fully comply with the maternity provisions, even if an employee has just started with them. Failure to do so might amount to sex discrimination and/or automatic unfair dismissal.
An employee doesn't have to inform her employer of the fact that she is pregnant until the 15th week before the baby is due. On or before this date, she should give written notice of the fact that she is pregnant, confirm her EWC and outline the date that she intends to finish working.
Within 28 days of receiving the employee's maternity notice, the employer must write to her, stating the date (52 weeks after the EWC) on which her maternity leave will end. This is the date that the employee will return to work, unless she serves written notice on her employer at least eight weeks in advance that she intends to return earlier.
Ideally, an employee would inform her employer that she is pregnant sooner than 15 weeks before her EWC. Employers need to be wary of asking employees whether they are pregnant, to prevent accusations of discrimination.
• Take specialist advice and research the relevant issues thoroughly.
• Review your contracts of employment and staff handbook to ensure your maternity provisions are up to date.
• Check your terms and conditions in relation to more favourable maternity packages than the statutory maternity requirements - you will be bound by such packages.
• Consider finding another existing member of staff or taking on a new employee on a fixed-term contract to cover the employee's maternity leave.
• Consider any health and safety implications of employing a pregnant employee in her current role - are there any dangers?
Any employee who is treated less favourably on the grounds of their sex (or due to pregnancy or maternity leave/pay) could well have a sex discrimination claim and/or an unfair dismissal claim. Tribunals can award an unlimited compensation sum for discrimination.
Jane Smith, employment lawyer at Stevensdrake solicitors
Tel: 01293 596985