When does an employee have to tell you they’re pregnant?
To qualify for maternity pay, an employee does not have to tell their employer they are pregnant until the 15th week before the expected week of the birth. However, employees will often tell employers earlier than this, not least because they do not qualify for any other legal protection (including the right not to be discriminated against) until their employer is notified.
When notifying, the employee should tell their employer:
- the fact of their pregnancy;
- the expected week of childbirth; and
- the date they expect their maternity leave to start.
Once notification is made, the employer has 28 days to formally acknowledge the pregnancy and confirm the end of the maternity period. If during the pregnancy the employee alters the date they intend their leave to start, the clock restarts at 28 days for the employer to again acknowledge and state the date the leave period will end.
What are the basic rights all employees are entitled to when they’re pregnant?
Pregnancy and maternity is a protected characteristic under the Equality Act 2010 so from the moment an employee notifies their employer they’re pregnant, they must not be treated detrimentally or be subjected to any detriment owing to their pregnancy or intention to take maternity leave. Further, employees are entitled to paid time off to attend antenatal appointments.
All employers have a duty to protect the health and safety of their employees, but special duties apply in respect of new or expectant mothers in the workplace. Employers must carry out regular assessments of workplace risks posed to new or expectant mothers or their babies, and any required changes must be made in a manner that does not disadvantage the pregnant employee.
Employees continue to accrue entitlement to annual leave during their pregnancy and maternity leave period and this can build up significantly. You should therefore have a fair and diplomatic discussion with your employee to ensure she is able to take her full annual leave at a mutually convenient time. You should not, however, comment negatively about the pregnancy or pressurise employees to take a particular length or timing of leave.
What is maternity leave and what do we need to pay?
All members of staff must take a period of compulsory maternity leave after the birth. For most employees, this is the first two weeks after birth. This is extended to four weeks for factory workers. An employer will be guilty of a criminal offence if it allows an employee to work during compulsory maternity leave.
Where an employee has at least six months’ continuous service, they are referred to as a ‘qualifying employee’. They are entitled to take up to 52 weeks’ maternity leave. The first 26 weeks is referred to as ordinary maternity leave (OML), followed immediately, if they choose, by 26 weeks of additional maternity leave (AML).
A qualifying employee is entitled to receive statutory maternity pay (SMP) for 39 weeks. This is calculated as follows:
- 90 per cent of their average earnings for the first six weeks; then
- a statutory rate for up to 33 weeks, or 90 per cent of their pay, if lower.
An employee may be entitled to higher rates of pay if their contract of employment provides for enhanced maternity payments.
Staff who do not qualify for SMP may receive maternity allowance at the statutory rate for up to 39 weeks or 90 per cent of pay, if lower.
Can an employee work while on maternity leave?
When an employee is on maternity leave, they ought not to be working on a day-to-day basis. They can, however, choose to work up to 10 keeping in touch (KIT) days on full pay. It is at the employee’s discretion whether they carry out any KIT days and they should not be pressured to do them if they are unwilling.
During a period of maternity leave, employers should keep in touch with their employee (even if they’re not working) to ensure they are ‘in the loop’ on changes to the business and that they’re not left out of anything. You can, and should, continue to invite them to parties (for example, Christmas gatherings). Discuss in advance how communication should be made during leave and its frequency.
Can you fairly dismiss someone on maternity leave?
It is automatically unfair to dismiss or select an employee for redundancy for a reason connected to pregnancy, giving birth (if this ends OML or AML) or for taking statutory maternity leave. A pregnant woman is also protected against being subjected to a detriment for those reasons. Any attempt to do so would also likely lead to a discrimination claim.
During OML the employee has the right to return to the job they left and no less favourable terms, apart from where there is a genuine redundancy. After any AML the employee has the right to return to the job they left, or to a role similar in duties, status and reward, unless there is a genuine redundancy.
Where there is a genuine redundancy, a fair dismissal is possible if a non-discriminatory redundancy process with adequate consultation is implemented and there are no other possible vacancies for the employee. If there is a suitable alternative vacancy, she should take priority for this role over other ‘at risk’ employees.
Sam Owen is a senior employment law solicitor at Harper James