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Pregnant women enjoy certain rights at work that give them protection during the period of their pregnancy, as well as during maternity leave.
This booklet summarises the basic statutory rights that are available to pregnant women at work.
Women are entitled to a reasonable amount of paid time off to attend ante-natal appointments during working hours. The woman must have permission from her employer to attend.
It may be reasonable for an employer to refuse someone time off if, say, she works part time, and could attend the appointment or class on one of her non-working days (as long as that does not involve rearranging her normal working hours).
If the woman thinks that her employer’s refusal is unreasonable, she can complain to a Tribunal within three months of the date of the missed appointment. She can claim compensation if she is disciplined or subjected to any disadvantage for taking time off, and can also claim unlawful sex discrimination.
As with most maternity rights, the woman must be an employee in order to benefit. Agency workers may, in some cases, be employees, but their situation will depend on the facts in the individual case.
The entitlement applies from day one of employment.
Women receiving fertility treatment are not entitled to paid time off for ante-natal care because they are not yet pregnant.
All pregnant employees are entitled to 52 weeks of maternity leave, irrespective of how long they have worked for their employer or how many hours they work per week. This is made up of 26 weeks of ordinary maternity leave (OML) and 26 weeks of additional maternity leave (AML). The reason for the distinction is because different levels of entitlement apply during each of these periods, if the expected week of childbirth was before 5 October 2008. Since 5 October 2008, women whose expected week of childbirth begins on or after this date, benefit from the same terms and conditions during both OML and AML.
The first two weeks of leave (starting with the date of birth) are known as compulsory leave. It is a criminal offence for an employer not to ensure that the woman takes two weeks of leave once the baby is born. Factory workers are prohibited from working for four weeks after the birth.
To apply for maternity leave, a woman must tell her employer (although not necessarily in writing) at least 15 weeks before the week in which baby is due:
• That she is pregnant
• The date when the baby is due (the employer can ask to see evidence such as a medical certificate, MAT B1 form)
• The date when she intends to start her maternity leave
If it is not reasonably practical for the woman to give that much notice, perhaps because the baby is premature or because she has just started working for that employer, she has to give notice as soon as she can.
If the woman fails to comply with any or all of the notification requirements, or gave them late and cannot satisfy the ‘not reasonably practical’ test, she loses her right to OML on the intended start date.
Once the employer knows that the woman is pregnant, they must carry out a risk assessment of the workplace, identifying any risks to the employee during her pregnancy and after the birth if she is breastfeeding.
Once the employee has told the employer when she intends to start OML, the employer must write to her within 28 days, telling her when she is expected to return, based on the assumption that she wants to take her full 52 week entitlement; that way everyone knows her due return date early on.
If the employer fails to tell the woman when her maternity leave ends, they cannot then complain if she does not return on the right date. The woman can, however, complain if she suffers a disadvantage because she comes back late. If she is dismissed as a result, it is likely to be automatically unfair.
If a woman is ill during her pregnancy and it has nothing to do with her pregnancy, she is entitled to claim sick leave in the usual way until the date when she starts OML.
If, however, she is off work with an illness which is wholly or partly to do with her pregnancy any time in the four weeks leading up to the due date, then OML will be automatically triggered.
During OML, the woman is entitled to all the same terms and conditions (apart from the right to be paid), had she not been away from work. Equally, she is bound by any obligations under her contract, unless they conflict with her right to take leave.
Payment is defined in the legislation as ‘wages or salary’. It follows therefore, that the woman is still entitled to receive all benefits in kind during her OML such as pension contributions or the use of a company car. It is not clear, however, whether profit-related pay schemes, bonuses and commissions are included.
If the payment relates to work before she went on leave, she should receive it; if it relates to work she would have done had she not been on OML, she may not be entitled to it. If the payment relates to a longer period (such as a year), she should receive a pro rata amount to reflect the time when she was at work. If the payment relates to the period of compulsory maternity leave, she should be entitled to it.
If her employer refuses to pay her these benefits, she can bring a claim for breach of contract in the county court, or in a Tribunal if she has left work. She may also be able to claim for unlawful deduction of wages or sex discrimination through a Tribunal.
All service-related benefits accrue during OML.
With effect from 5th October 2008, women are now entitled to all the same terms and conditions during AML, as they are during OML. Equally, they are bound by any obligations under their contract, unless the obligations conflict with the right to take leave.
These revised rights arise in respect of employees whose expected week of childbirth begins on or after 5 October 2008, or with whom a child is expected to be placed for adoption on or after that date.
Paid annual leave (both contractual and statutory under the Working Time Regulations) continue to accrue during OML and AML. The leave should therefore be taken either before or after maternity leave.
If the period of maternity leave coincides with a period of compulsory shut down, then the woman has the right to take that annual leave at some other time, either before or after the maternity leave.
If the woman does not have a contractual entitlement to annual leave in excess of her statutory entitlement at that time, she will need to ensure that the statutory leave is taken within the leave year in which it accrues.
This is because under the Working Time Regulations there is no right to carry over statutory leave from one leave year to the next.
Employers can make reasonable contact with the woman during the leave period to let her know about any changes that are happening. They might also discuss whether or not she will come into work (perhaps for training purposes) during her leave.
Women are allowed to go into work for up to ten days (known as “keeping in touch” days) during their leave without losing their right to maternity leave or statutory pay. They are not obliged to take up these days, nor is the employer obliged to offer them.
Women are not required to give any notice to their employer that they intend to return to work after the end of their full maternity leave. If a woman does not wish to return, she must hand in her notice in the normal way before the end of her maternity leave period.
If a woman wants to return before the end of her full leave period, she has to tell her employer eight weeks before the date of when she intends to come back. They can postpone her return until they’ve received that notice although not past the end of the 52-week period.
After OML a woman is entitled to return to the same job that she was doing before she left, as if she hadn’t been away (so for example her salary, hours and seniority should be the same). If her employer refuses to allow her to do that, she is likely to be able to make a Tribunal claim for less favourable treatment by reason of pregnancy and maternity leave, sex discrimination and possibly also unfair dismissal.
As with OML, someone returning from AML is entitled to return to the job they were doing before they went on leave. If her employer refuses to allow her to do that, she is likely to be able to make a Tribunal claim for less favourable treatment by reason of pregnancy and maternity leave, sex discrimination and possibly also unfair dismissal.
If an employer refuses to take someone back, this would constitute an automatically unfair dismissal unless the reason was because her job had been made redundant, or if it was not reasonably practical to take her back perhaps because of an internal reorganisation. In these circumstances the usual rules on unfair dismissal would apply and she may also have claims for pregnancy related detriment and sex discrimination. There is also an additional requirement for employers to place the employee on maternity leave in any suitable vacancy, if her original job was made redundant.
If a woman is made redundant during her maternity leave, her employer must offer her suitable, alternative employment (if it exists) which is appropriate for her to do. She has priority in being offered alternative work over other staff who are not on maternity leave.
The terms and conditions should not be substantially less favourable than her old job - for instance, they should not be of a lower status. And the Tribunal will also take into account whether the new job poses problems for the woman, such as increased travelling time and greater childcare costs.
SMP is the money paid by an employer to a pregnant woman for up to 39 weeks if she satisfies the qualifying conditions, outlined below.
SMP is subject to tax and NI contributions. It can be paid weekly or monthly, or even as a lump sum (although this increases the woman’s liability to NI contributions). Frequently, women are entitled to more favourable contractual terms, in which case the employer can offset SMP against the contractual payments.
To qualify for SMP, the woman has to:
• Be pregnant at the 11th week before the expected week of childbirth
• Be in continuous employment for 26 weeks with the same employer, up to and including the 15th week before the expected week of childbirth (the ‘qualifying’ week)
• Have average weekly earnings during an eight week reference period ending with the qualifying week that are high enough to make her eligible to pay class 1 NI contributions
• Have given 28 days’ notice to her employer as to when they are liable to start paying SMP (or less than that if it is not reasonably practical to give 28 days’ notice)
• Have produced a medical certificate from a doctor or midwife, which gives the date when she is due to give birth
• Have stopped work
SMP is paid at a rate of 90% of normal earnings for the first six weeks of OML, followed by a flat rate for the remaining 33 weeks. From 5 April 2009 the rate is £123.06 per week (the rate increases annually each April). Normal earnings are calculated on the basis of an eight-week reference period prior to the 15th week before the week in which the baby is due. This will include a backdated pay rise that an employer may have awarded to staff even if it postdates the eight-week reference period.
None. The only money that an employer can recoup is any contractual maternity benefit that they pay, over and above SMP.
Maternity allowance is a benefit payable to women who do not qualify for SMP. To claim the allowance they need to:
• Have been employed (or self-employed) for at least 26 weeks in the 66 weeks before the baby is due
• Have average weekly earnings over any 13 weeks in the 66 week period of more than £30 per week
It is paid for a maximum of 39 weeks at a flat rate of £123.06 per week or at 90% of average weekly earnings, whichever is less. It cannot start before the 11th week before the baby is due. (The rate increases annually each April; the above rate is correct as of 5 April 2009).
Thompsons provides updates to trade union activists on the law, the series of updates includes:
Thompsons’ website includes regular legal updates in the e-training section of the website.
The information contained in this booklet is not a substitute for legal advice. You should talk to a lawyer or adviser before making a decision about what to do. Thompsons Solicitors is regulated by the Solicitors Regulation Authority.
Published February 2009
