Elizabeth Parkin: Maternity leave issues

Many employers struggle to fully understand their obligations to pregnant women. Misunderstanding legal duties may lead to employment tribunal claims which can be expensive to settle, not to mention the unwelcome possibility of negative publicity.

Part of the problem for employers is the extensive legislation which includes rights to:

  • paid time off for ante-natal classes
  • 26 weeks, Ordinary Maternity Leave (OML) and Additional Maternity Leave (AML) (52 weeks total) which exists regardless of length of service, as long as they comply with the notification requirements
  • statutory maternity pay (SMP) which is separate from the right to maternity leave.
  • not to be dismissed for a pregnancy or maternity-related reasons
  • be offered a suitable alternative role in redundancy situations in preference to other employees
  • protection against discrimination.

Perhaps the most valuable protection is a woman’s entitlement to return to the same job after a period of OML on the same terms and conditions. She is also entitled to the benefit of any beneficial terms introduced whilst away.

The same rights apply after return from AML, although there’s limited flexibility if it’s not reasonably practicable for return to be to the same job. What is deemed to be a suitable alternative is not set out in statute but, broadly speaking, the terms should be no less favourable and the role should be of equivalent status.

When engaging someone on a fixed-term contract to cover maternity leave, employers must ensure the fixed-term contract states the purpose of the cover and that it will terminate upon the employee’s return from leave. Employers should beware the pitfalls of deciding they prefer the maternity cover employee and avoid the temptation to re-assign the woman upon her return, this is likely to be discriminatory and may result in costly tribunal claims.

What happens when an employee returns to work and is either already pregnant, or falls pregnant again almost immediately?

Employers may find this disruptive, but should remember the law does not impose any time limit on women exercising their rights. There is no restriction on the number of times a woman can go on maternity leave and periods of leave may overlap. However frustrated an employer may feel it shouldn’t make comments to this effect, or take it out on the employee because this is likely to be discrimination.

However, employees’ entitlement to SMP may be impacted because this is calculated on average earnings. SMP is not payable if earnings are below the lower earnings limit.

Employers should bear in mind that contractual maternity pay/sick pay/holiday pay/bonuses/commission will be classed as earnings.

While employers cannot prevent consecutive periods of maternity leave being taken, there is flexibility when it comes to company maternity pay. Provided any policy is clearly drafted, one option could be that there must be a return to work for a set time between any periods of maternity leave before entitlement for enhanced pay can be claimed again.

The reasons for penalising family planning choices should be thought through. Employers should be able to demonstrate a real business need for this. Ideally there should be consultation with any recognised trade union or consultative body before any such policy is introduced. This is fine where the benefit can be considered discretionary, but where a woman has a contractual right to enhanced maternity pay this cannot be changed without her consent.

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A common media question is whether rights have gone too far. Maternity leave, pay and associated rights should be handled sensitively. As the government looks to introduce shared parental leave and encourage more men to take on caring responsibilities for their children, this is an issue that all workplaces will need to handle fairly, not only to ensure legal compliance but also to ensure good working relationships are maintained.

Elizabeth Parkin is an employment specialist at Shoosmiths.