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Pregnancy and maternity

21 April 2005

Whilst only 350,000 women are pregnant in any one year in the United Kingdom, there are almost 10 million working women of childbearing age. Many of these women will experience pregnancy at work at least once. An interim report published by the Equal Opportunities Commission in September 2004 found that nearly half of all women who are pregnant at work experienced some form of discrimination. This suggests that the law needs to be better understood by employers.

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 the pregnant employees, rights which have recently been improved and which will see further changes in the not too distant future.

What extra rights do pregnant workers have? As soon as a woman becomes pregnant she is entitled to enhanced legal protection on grounds of her pregnancy. An employer must not subject an employee to unfair treatment at work because she:

• is pregnant;
• has given birth to a child;
• has taken, or sought to take, ordinary or additional maternity leave;
• has taken, or sought to take, any of the benefits of ordinary maternity leave;
• does not return to work at the end of her leave in circumstances where her employer gives her insufficient or no notice of when it should end; or
• has been suspended from work for health and safety reasons connected with her maternity.

Women who believe they have been unfairly treated at work for these reasons may seek redress through an employment tribunal.

During the term of her pregnancy whilst she is at work a female employee is entitled to:

• Paid leave to attend ante-natal appointments which may include relaxation and parentcraft classes as well as medical examinations. There is no minimum entitlement, she is merely entitled to reasonable time off work to attend her appointments. The employer is entitled to request advance notification of her absence so that as far as possible any disruption to the workplace is minimised.

• Enhanced protection on grounds of health and safety if the work in which she is involved exposes herself 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 on full pay from work for as long as necessary to protect her and her unborn child.

Is there a right to time off? All pregnant employees are entitled to Maternity Leave, although the amount of leave is subject to their length of service. There are three categories of maternity leave:

• 26 weeks' Ordinary Maternity Leave (OML) regardless of length of service.
• Up to 26 weeks' Additional Maternity Leave (AML) for women who, by the beginning of the 14th week before the Expected Week of Childbirth (EWC) have 26 weeks' continuous service with their employer. AML begins from the end of OML.
• 2 weeks' Compulsory Maternity Leave during the 2 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 within OML.

To qualify for OML the employee must notify her employer no later than the end of the 15th week before the week that her baby is due or as soon as reasonably practicable that:
• she is pregnant;
• the date of her EWC (and provide a medical certificate supporting this if the employer so requests); and
• the date on which she intends to start her leave (in writing, if requested by the employer).

The woman chooses when she wishes her OML to commence, but this cannot be earlier than 11 weeks before the EWC. If she is absent from work for a pregnancy related reason after the beginning of the 4th week before the EWC then the OML begins automatically on the day after the first day of her absence. She must notify her employer that she is absent from work wholly or partly because of pregnancy and of the date on which her absence for that reason began as soon as is reasonably practicable.

She can give notice for her Statutory Maternity Pay (SMP) at the same time as giving notice of OML. To qualify for SMP only, she must give at least 28 days' notice of the date she expects the SMP to start and provide medical evidence of her pregnancy. The employee may change her leave dates as long as she gives 28 days' notice of the changes to her employer.

If entitled to AML it will be presumed that she intends to exercise her right to AML unless she notifies her employer of her intention to return early.

What do I have to pay them? 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 (QW), namely the 15th week before the EWC; and
• whose average weekly earnings during the 8 weeks up to and including the QW have been at least equal to the lower earnings limit for National Insurance (NI) contributions. These average weekly earnings are used for the Calculation Period being the period ending 14 weeks before the EWC taking account of the average weekly earnings during the preceding 8 weeks.

SMP is payable regardless of whether the employee intends to return to work. There are 2 rates of SMP:

• the higher rate, payable during the first 6 weeks of OML 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 £100 per week or 90% of her average weekly earnings;

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

From 6 April 2005, new regulations have meant that employers must increase the amount of maternity pay where a pay rise is awarded at any time between the Calculation Period for maternity pay and the very end of the maternity leave period. This means that:

• the average weekly earnings will have to be worked out as if the pay rise had been backdated to the Calculation Period and payments for the 26 weeks SMP will have to be recalculated;
• if SMP has not yet commenced, the new payment level should be applied when it starts;
• if SMP has commenced, the payments going forward should be increased and arrears paid;
• if SMP has been exhausted but the employee is still on maternity leave, arrears should be paid.

When do I stop making payments? 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 it back from the Government? Employers can recover 92% of SMP paid out, by adjustment of their PAYE and national insurance contributions. Small employers, whose total NI liability in the previous tax year was no more than £45,000 may recover 100% of SMP plus 4.5% for the tax years 2002/3 and 2003/4 in compensation for employers' NI costs.

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 qualifications 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 likely to become pregnant, or who have given birth within the previous 6 months and/or are breast feeling. 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 and long periods of time in extremely hot or cold conditions (for example stocking chillers, or long periods of work near a hot oven) may have to be avoided to avoid putting women at unnecessary risk.

There must be no adverse effects on the employee's terms and conditions if any adjustments are made. A failure to carry out a risk assessment which causes a detriment to an employee amounts to direct sex discrimination.

All female employees, regardless of service or hours worked, have a right not to be dismissed on the grounds of pregnancy, a pregnancy related reason or a reason relating to birth or maternity leave. If dismissed on such grounds their dismissal will be automatically unfair.

Dismissal, selection for redundancy or other detrimental treatment may also amount to unlawful discrimination on grounds of sex or marriage. Note, however, that if the reason for dismissal is not related to the pregnancy, for example on ground 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 alternative work which is available which 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.

An employee dismissed during pregnancy or Ordinary or Additional Maternity Leave is also entitled to an accurate written statement of the reasons for dismissal. This does not have to be requested by the employee and this right applies regardless of the employee's length of service.

Do part-timers count? 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 under the Part-time Employees (Prevention of Less Favourable Treatment) Regulations 2000.

Do they have a right to come back and work part time? Although it is common for a woman to request to return to work part-time following maternity leave, she has no statutory right to automatically do so. However, an employer's failure to consider such a request 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 grounds that due to their additional family responsibilities, the requirement to work full-time has a disproportionate effect upon women when compared to men, when they are forced to give up work because child minding arrangements cannot allow them to work full-time.

From 6 April 2003, employees (both mothers and fathers) who are parents of young children have had the right to request flexible working patterns. Employers are under obligation to give such requests serious consideration. In order to qualify for this right a parent must:

• be an employee;
• have a child under 6, or 18 where the child is disabled;
• be responsible for the child as its parent or the partner of the parent (including adoptive and foster parents);
• be making the application to enable them to care for the child;
• have worked for their employer continuously for 26 weeks at the date on which the application is made; and
• have not made another application to work flexibly under the right during the past 12 months.

If the request is agreed, this is a permanent change to the employee's terms and conditions of employment.

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 employer.

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, balanced against the degree of harm or damage experienced by the individual. The greater the degree of harm, the stricter the need to justify the business need.

What about paternity leave? Eligible employees whose babies were born after 6 April 2003 can take up to 2 weeks' paid leave to care for the new baby and support the mother.

What about parental leave? Employees (both mothers and fathers) who have completed one year's service with their employer are entitled to up to 13 weeks' unpaid parental leave to care for their child. The leave can usually be taken up to 5 years from the date of birth. In the case of parents of disabled children, up to 18 weeks' leave may be taken until the child's eighteenth birthday.

What about dependants? All employees are entitled to take a reasonable amount of unpaid time off work to deal with an emergency or unexpected situation involving a dependant. This can include, where necessary, taking time off to assist a dependant who is having a baby. A "dependant" may include the husband, wife, child or parents of an employee.

What does the future hold? The Department of Trade and Industry published a consultation paper "Work and Families: Choice and Flexibility" in February 2005. Proposals include:

• extending the period of statutory maternity pay, maternity allowance and adoption pay initially from 26 to 39 weeks and subsequently to 52 weeks;
• improving dialogue between employers and employees during maternity leave, including extending the notice period mothers give when returning to work;
• allowing a mother to transfer some of her leave and pay entitlement to the father; and
• extending the existing right of an employee to request flexible wording arrangements to new groups of people eg parents of older children and carers of sick and disabled adults.

In addition, later in 2005, the Court of Appeal is due to consider the regulations affecting pay rises awarded during the Calculation Period for SMP. It is possible that the Court of Appeal may decide that the regulations should apply retrospectively and not just to mothers receiving maternity benefit after 6 April 2005. This would mean that many more employees would be entitled to pay rises during maternity leave which may have occurred some years ago.

Jonathan Exten-Wright
Jonathan Exten-Wright is a partner in the Employment Department of DLA Piper Rudnick Gray Cary UK LLP. jonathan.exten-wright@dlapiper.com / www.dlapiper.com

Deepali Kidambi
Deepali Kidambi is a trainee in the Employment Department of DLA Piper Rudnick Gray Cary UK LLP. deepali.kidambi@dlapiper.com / www.dlapiper.com

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