Statutory maternity leave rights

Once informed of an employee’s pregnancy, an employer’s mind will probably start racing, thinking about the employee’s statutory rights and protections. Do you know what rights the mother-to-be is entitled to?

When an employee is pregnant or becomes a new mother, their rights do not just stop at maternity leave and pay. In fact, they may be entitled to an extensive array of maternity leave rights, including:

  • time off for antenatal appointments;
  • the right to return to their job;
  • the right to request flexible working;
  • health and safety protection;
  • the choice to cut short their maternity leave and opt in for Shared Parental Leave;
  • protection in the redundancy process; and
  • protection from dismissal due to their pregnancy or maternity

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Maternity leave

Employees have the right to up to 52 weeks of maternity leave. Maternity leave is a ‘day one right’, therefore it does not matter how long they have worked for you. As long as they have provided the required amount of notice, they will have this right.

Maternity pay

Maternity pay, on the other hand, is not a day one right. Along with a long list of eligibility requirements, they must have worked for you continuously for a minimum of 26 weeks when they reach the 15th week before the expected week of the child’s birth.

Under the statutory scheme, eligible employees may be eligible for up to 39 weeks of Statutory Maternity Pay. If they do not fulfil all the requirements, they may be entitled to up to 39 weeks of Maternity Allowance.

As an employer, you may offer enhanced contractual maternity pay.

Time off for antenatal appointments

Pregnant employees have the right to a reasonable amount of time off to attend antenatal care appointments made on the advice of a registered medical practitioner. This means that you cannot force an employee to take annual leave or make up the time for the time they spent away from the workplace.

Antenatal appointments are not confined to standard appointments, but extend to any other classes that have been recommended by a doctor or a midwife. This could include parent craft or relaxation classes.

While attending their antenatal appointment, they have the right to be paid their normal hourly rate for time off necessary to attend the antenatal appointment.

Right to return

While the employee is away, you may have to resort to hiring a temporary worker to undertake her work. However, if an employee returns during the first 26 weeks, the employee is entitled to return to the job they held before they commenced their maternity leave – same job, same terms and same conditions.

If the employee returns between 26 and 52 weeks, they have the right to their previous job. However, this may not always be reasonably practicable. For example, you may have restructured the business while they were on maternity leave and their job now no longer exists. If you cannot offer them their previous job, you will need to offer them a suitable similar job, which must have the same or equivalent terms and conditions.

Remember, it will not be considered a good business reason if you do not reinstate the employee just because you think the temporary worker is better and you wish keep them in post.

The right to request flexible working

There sometimes seems to be a misconception that new mothers have an automatic right to demand that they work part time or have their hours reduced once they return to work.

In fact, there is a right to request flexible working, but there is no automatic right to be granted flexible working. It is also not just reserved for new mothers – all employees who have a minimum of 26 weeks of continuous service with their employer and have not made an application for flexible working during the last 12 months can ask for flexible working.

Employers have a duty to consider the request in a reasonable way and can only refuse for a clear business reason, for example, an inability to reorganise work amongst existing staff.

Health and safety protection

Your General Risk Assessment needs to identify if there are any particular risks to female employees of childbearing age, and new and expectant mothers.

If risks have been identified, you must take reasonable steps to eliminate, decrease or control these risks to the employee’s health, the health of the baby or the breastfeeding process. This could mean you have to vary their hours or change their working conditions, offer them alternative jobs or suspend them with pay.

Right to Shared Parental Leave

Introduced in 2015, employees may be eligible for Shared Parental Leave (SPL), which gives new parents more flexible options when deciding who will take time off to care for the baby. An eligible mother can end her maternity leave early and share up to 50 weeks of the remaining leave entitlement with the father of the baby or her partner.

Protections in the redundancy process

Despite what many people believe, it is possible to make pregnant employees or those on maternity leave redundant, but as expected, the law does provide extra protections.

Whether they are still in the workplace or already on maternity leave, you must warn them of potential redundancy. Failure to do this is likely to be discriminatory and make the whole process unfair.

Additionally, you cannot select them for redundancy just because they are pregnant or are on maternity leave because this could render the dismissal unfair.

Perhaps the most important protection is that if you have selected them for redundancy, an employee on maternity leave must be offered any suitable alternative job vacancy. You must offer this role to the employee on maternity leave even if there are other colleagues who more suitable.

Protections in the dismissal process

Many employers erroneously think that employees cannot bring a claim for unfair dismissal if an employee has not worked for you for two years. Sometimes, the reason for the dismissal will make the dismissal automatically unfair. Irrespective of the employee’s length of service, an employee can make a claim for unfair dismissal if the main reason for dismissing them is the fact that she is pregnant or on maternity leave.

Free guide to Maternity Leave and Pay

Discover how to handle issues related to maternity leave