Statutory maternity leave (SML)
This section explains who is entitled to statutory maternity leave, what the entitlement is and how to manage maternity leave.
What maternity rights are employees entitled to?
All employees who can satisfy the relevant qualifying conditions enjoy the following statutory rights:
- Paid time off to receive ante-natal care;
- Maternity leave;
- Protection from dismissal by reason of pregnancy or childbirth;
- Right to return to work after maternity leave;
- Offer of alternative work before being suspended on maternity grounds;
- Remuneration on suspension on maternity grounds;
- Statutory maternity pay.
What is maternity leave?
It is common to refer to any time that a woman takes off work after giving birth as maternity leave, but for employment law purposes maternity leave is very specifically defined.
There are three types of maternity leave:
- Ordinary maternity leave (OML) - OML lasts for up to 26 weeks and can commence from 11 weeks before the baby is due.
- Additional maternity leave (AML) - AML lasts for 26 weeks and commences from the last day of OML.
- Compulsory maternity leave - For health and safety reasons employers are prohibited from allowing women who are entitled to OML from working during the two weeks that follows the childbirth (including the day of childbirth). This is extended to four weeks for women working in factories or workshops. Employers will be committing a criminal offence if they breach this provision and liable for a fine on summary conviction.
Who is entitled to maternity leave?
Only employees are entitled to take maternity leave as per the statutory definition given above ('What is maternity leave?'). This means that only individuals who are engaged under a contract of employment are entitled to OML, AML and compulsory leave and the rights that attach to them. Workers engaged under contracts for services are not entitled to take maternity leave although they are entitled to other maternity rights. A worker who is not obliged to carry out work can choose not to be available for work at certain periods including following the birth of a child.
Note that even though workers engaged under a contract for services are not entitled to compulsory maternity leave as such, their employers are still required to safeguard their health and safety and similar provisions should be applied to such workers to similarly restrict them from working during the equivalent of the compulsory leave period.
What notice does an employee need to give to start maternity leave?
An employee must tell her employer of her intention to take maternity leave by the 15th week before the expected week of childbirth (EWC) (unless this is not reasonably practicable). She will need to state:
- That she is pregnant;
- The week her baby is expected to be born; and
- When she would like her maternity leave to start.
An employee can change her mind about when she plans to start her leave as long as she gives her employer 28 days’ notice of any change.
What information must an employer provide to the employee?
The employer has 28 days from receiving the employee’s notice of maternity leave in which to reply in writing to the employee explaining the date she is expected to return to work assuming that she takes her full entitlement of OML and AML.
If the employer fails to comply with this requirement the employee may be able to return to work from maternity leave early without giving the required notice. Further if the employee does not return to work by the required date the employer will not be able to subject her to a detriment (e.g. taking disciplinary action against her).
What happens if the employee has a still birth or if the baby is premature?
If employee carries the baby for 24 weeks but loses the baby or has a still birth she will still be entitled to take maternity leave. She does not need to notify her employer of the start date of her maternity leave but should inform her employer as soon as possible after the baby is lost that she is starting maternity leave.
For babies born prematurely the employee is not required to give notice of her intended leave date, but should inform her employer as soon as possible after the baby is born that she is starting maternity leave.
What time off is an employee entitled to for ante-natal care?
The right to paid time off for ante-natal care arises under the Employment Rights Act 1996 and applies to individuals who fall within the definition of the term “employee” under Section 230 of that Act. Temporary workers engaged under a contract for services do not satisfy the definition of “employee” under Section 230 and do not therefore qualify for paid time off for antenatal checks. However agency workers (as defined under the Agency Workers Regulations 2010) who qualify for equal treatment are entitled to paid time off to attend ante-natal appointments.
A pregnant employee is entitled to reasonable time off with pay at the appropriate hourly rate for antenatal care. This is her right regardless of length of service or hours worked. The employee must - if requested by the employer - produce a medical appointment card or some other document showing that the appointment has been made.
It is important to note that if an employer unreasonably refuses to allow a woman time off for antenatal care and/or fail to pay her in full, the employee can make a complaint to the Employment Tribunal.
What rights are there to accompany a pregnant woman to ante-natal appointments?
What rights does an employee have during maternity leave?
During maternity leave (OML and AML) an employee’s contract of employment continues and she is entitled to continue to receiving the benefit of her terms and conditions of employment, with the exception of remuneration. This means that an employer would not have to pay the employee her salary, as this is replaced by statutory maternity pay (or your company’s scheme), but will have to maintain the employee’s benefits in kind e.g. the use of a company car.
For example, an employee’s contractual holiday entitlement will accrue during the 26 week period, but any bonuses or commission payments are probably remuneration and as such not normally payable. However, you should always draft your bonus/commission schemes very carefully as the case of Hoyland v Asda shows.
In this case, the Employment Appeal Tribunal in Scotland decided that the employer was entitled to make a pro rata reduction in bonuses that they pay to staff to reflect the period that a woman is absent from work on maternity leave.
During 2002, ASDA operated a bonus scheme that was based on corporate performance (not individual). There was a fixed formula by which they awarded it and there was a provision that stated that employees who were absent for 8 consecutive weeks or more would have their bonus reduced in accordance with the time they were absent. This included those employees on maternity leave.
The employee here, Mrs Hoyland, was absent from work on maternity leave between June and December 2002 and so therefore had her bonus reduced to reflect this absence. Mrs Hoyland brought a sex discrimination claim against ASDA.
It was decided that ASDA had acted unlawfully in not paying Mrs Hoyland her bonus for the compulsory two week maternity leave period, however had not acted unlawfully in respect of the deduction relating to the maternity leave absence beyond those two weeks.
This decision is good news for employers; however it does not mean that you can now just simply exclude women who are on maternity leave from receiving a bonus. The wording of your bonus scheme will be extremely important in any dispute. ASDA here had a scheme that was based on attendance and it actually stated in it that employees who were absent over a certain period would have their bonus reduced. Another factor to take into account is that this case was based on contractual bonuses only and so the Employment Appeal Tribunal found the bonus to be within the definition of ‘wages and salary’, which a woman is not entitled to receive during her maternity leave period. If you have a discretionary bonus award, it could be argued that this does not fall within that definition.
This EAT decision was upheld by the Court of Session on appeal, Mrs Hoyland was unable to bring a claim for sex discrimination.
It is advisable to word your bonus schemes very carefully and note that the position may be different if the bonus is based on individual performance/targets, rather than that of the company. To avoid risk, you should only pro-rata bonuses for the entire maternity period in limited circumstances, and certainly it must be paid during the two week compulsory maternity leave period.
Note that a bonus that has been earned by an employee before she commences her maternity leave but which is due to be paid at a later date under the contract, will be entitled to receive the payment. This can occur where for example a commission placement is earned when an employee places a candidate is placed into a permanent role with a client but where the employee would not receive the commission payment until after the client has received a paid the invoice for that placement.
What is the “sickness trigger” rule?
This is where the employee’s maternity leave is automatically started if she is absent from work for a pregnancy related illness in the four weeks before the start of the week the baby is due. So if an employee has opted to work beyond this date and then falls ill due to a pregnancy related illness, her maternity leave will be triggered automatically at this point.
When can an employee return to work?
An employee is not obliged to take her entire 26 weeks’ ordinary maternity leave and 26 weeks additional maternity leave (52 weeks in total) and may return to work at an earlier date providing she gives her employer the prescribed period of notice of her return date (so long as this is not within 2 weeks of giving birth). The notice period is 8 weeks.
Does an employee have the right to return to work from maternity leave?
Returning after ordinary maternity leave:
An employee returning to work after ordinary maternity leave is entitled to return to the same job, at the same place and on the same terms and conditions, as if she had not been absent. If for reasons of redundancy the employee is unable to return to her old job, then her employer must offer a suitable alternative position and the terms and conditions relating to the new position must not be substantially less favorable than her previous position. If the employee rejects the offer, her employer is entitled to terminate her employment by reason of redundancy and even if she meets the eligibility requirements for redundancy, she may lose her right to a redundancy payment.
An employee on ordinary maternity leave does not have to give notice of her return at the expiry of the 26 weeks, as it is presumed that she will return at that point. But if she decides to return early she must give you 8 weeks’ notice. If an employee on ordinary maternity leave wishes to return to work early but does not give the prescribed period of notice, you may delay the employee’s return to work the prescribed period of notice.
Returning after additional maternity leave:
After additional maternity leave an employee is still entitled to return to work to the same job, on the same terms and conditions as if she had not been absent.
However, if there is some reason why it is not reasonably practicable for her to return to that same job, she is entitled to return to another job with the same employer which is suitable and appropriate for her in the circumstances. She is entitled to return on terms and conditions that are no less favorable than she had in her original job.
Additional maternity leave ends 26 weeks after the end of ordinary maternity leave, so there is some indication about when your employee may return to work, i.e. 1 year from the date they start their additional maternity leave, unless you receive notice from them that they wish to return earlier.
An employer must not write to an employee before the end of her ordinary leave and ask whether she intends to return at the end of her additional leave. It is simply to be assumed that the employee will return at the end of the additional maternity leave period.
An employer cannot postpone an employee’s return to work after additional maternity leave.
The rules on the right to return after maternity leave apply equally to all employees regardless of the size of the employer.
Maternity leave - what are 'keeping in touch' days?
Where the employer and mother agree, employee’s will be able to work for up to 10 “keeping in touch” days during their leave, without losing their right to statutory maternity pay or maternity allowance. Employees who undertake, consider undertaking or refuse to undertake such work are protected from detriment or dismissal on such grounds. Employers are also permitted to make “reasonable contact” with employees whilst they are on maternity leave.
What do I do if my employee requests to return to work part time?
Employers often receive a request from an employee to return to work on a part time basis following maternity leave. You should consider carefully before making a decision since a refusal of such a request without good reason may constitute indirect sex discrimination, and note that recent case law has shown that it is difficult to justify such a refusal. Unlimited compensation can be awarded for sex discrimination. In addition, employees who are parents of children under 16 or disabled children now have a legal right to request flexible working. You are now under a duty to seriously consider their requests in accordance with a set down procedure.
How do I deal with temporary replacements?
Replacement temporary workers can be dismissed for a fair reason when a woman returns to work provided they were informed at the outset of their engagement that this would be the case and you act reasonably over the dismissal. However, any temporary workers who are engaged on contracts of employment will be subject to the Fixed Term Employees Regulations.
What is unfair dismissal for reasons related to pregnancy?
If you dismiss a pregnant woman or one who has given birth, you must ensure that it is not for a reason connected with her pregnancy or child birth, otherwise the Employment Tribunal may deem the dismissal to be automatically unfair. This means that, even if you have followed a fair procedure, if the reason established for the dismissal is due to her pregnancy or child birth, it will be an unfair dismissal.
A pregnancy-related dismissal includes one relating to miscarriages and pregnancy-related illnesses before and after birth. An employee who believes that they have been dismissed for a pregnancy related reason can bring a complaint to the Employment Tribunal for unfair dismissal within 3 months of termination of their contract without requiring a minimum length of service. You would then have to prove that the dismissal was not for a pregnancy related reason, but for some other reason, for example, redundancy or health and safety.
The circumstances in which a dismissal would be deemed to be automatically unfair are when the reason or principal reason for the dismissal is for any one of the instances below:
- because she is pregnant or for any other reason connected with her pregnancy;
- she is dismissed within the maternity leave period because she has given birth or for any other reason connected with having given birth;
- she took maternity leave or took advantage of the benefits of maternity leave;
- she was suspended from work on maternity grounds;
- she was dismissed by reason of redundancy in the maternity leave period and an available suitable vacancy was not offered to her;
- she was unable to resume work on grounds of illness or injury and was dismissed within 4 weeks of the end of the maternity leave period whilst still incapable of work.
An employee also has the additional right not to be subjected to detrimental treatment on grounds of pregnancy, childbirth or maternity and can seek redress through an Employment Tribunal.
What health and safety considerations do employers need to be aware of?
Regulation 16 of the Management of Health & Safety at Work Regulations 1999 (MHSWR 1999) states that all employers must carry out a risk assessment for new and expectant mothers. The risk assessments must ensure that there are no workplace risks which could do harm to either an expectant mother or her unborn child, or new mothers (a new mother is a mother who is breast-feeding or within 6 months of giving birth). They should make the results of the risk assessment available to the workforce and not just those who are pregnant or have recently given birth.
Risks could include:
- lifting or carrying heavy loads;
- standing or sitting for long periods;
- exposure to toxic substances; or
- working long hours.
Where the risk assessment identifies risks to the new or expectant mother and these risks cannot be avoided by the employer taking preventative or protective measures, then the employer will need to:
- alter her working conditions or hours of work if it is reasonable to do so and would avoid the risks. Where no reasonable adjustments can be made the employer should;
- identify and offer the employee any suitable alternative work that is available, if this is not feasible;
- suspend the employee from work for as long as is necessary to protect her health and safety as well as that of her child. Under the Employment Rights Act 1996, the suspension should be on full pay.
The HSE has produced a risk assessment flowchart that can be used for pregnant employees.
When must a pregnant employee be suspended on health and safety grounds?
An employer is required to suspend an employee on maternity grounds if it is not possible to alter her working conditions or hours or offer suitable alternative work to avoid risks to the employee/unborn child as identified in a risk assessment.
An employee should also be suspended where she is a new or expectant mother working at night and she provides a medical certificate stating that it is necessary for her health and safety that she should not work such hours.
Before being suspended for health and safety reasons related to maternity grounds, the employee should be offered any available suitable alternative work. This means work which is suitable and appropriate for her to do having regard to the circumstances and on the same terms and conditions as her previous job. Failure to make such an offer of work to an employee may result in the employee bringing a complaint against you in the Employment Tribunal.
If an employer decides to suspend an employee from work on maternity grounds, the employee is still entitled to remuneration which is to be calculated on one week’s pay for each week of suspension.
Are employees entitled to accrue and be paid holiday pay when they are on maternity leave?
During OML and AML both contractual and statutory holiday accrues as normal under the employment contract.
The result of this is that a woman returning from maternity leave is likely to have accrued holiday that she will be unable to take within the relevant leave year. For example if she has taken the full OML and AML she will have been on maternity leave for 52 weeks.
In relation to statutory maternity leave, the Working Time Regulations 1998 (WTR) do not allow employees to roll their unused holiday into the following leave year. However following cases related to absence from work due to sickness/incapacity it is now established that a worker must not lose the benefit of holiday due to such absence and the same would apply to maternity leave absence. Additionally, employers must also take care not to subject a woman to a detriment discriminate against an employee because of maternity (because she is pregnant or has given birth to a child). (This could result if the woman suffers the loss of holiday entitlement).
For this reason it is advisable to allow employees to roll over such accrued statutory holiday so that the entitlement is not lost. This situation can also be managed by encouraging the worker to take some of her holiday entitlement before commencing her maternity leave.
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