I’m pregnant. Wonderful news, but now you, the employer, need to manage this. You need to know their Statutory Maternity Rights.
What are Ordinary Maternity leave, Additional Maternity Leave and Statutory Maternity pay? And who is entitled to what! You will need to know terms such as ‘Qualifying Week’, ‘Expected Week of Confinement’, ‘Relevant Pay period’. Also, what are your employee’s contractual rights, what are KIT days? Do you need to keep their job open? What happens if they are too ill to work? What are your health and safety duties? You need to know all this so that you take the right actions to comply with the law.
As a small employer this can be quite daunting. This Maternity guide has been taken from our HR Absence Toolkit and supports the implementation of our Maternity procedure.
Maternity let’s look first at Leave entitlement
Regardless of length of service, every pregnant employee is entitled to 26 weeks’ Ordinary Maternity Leave (OML) followed immediately by 26 weeks’ Additional Maternity Leave. Within the OML there are 2 weeks compulsory leave immediately following the birth. 4 weeks for factory workers.
To qualify for both OML and AML a woman must still be in work into the 15th week before the baby is due. She must tell you by the 15th week that she is pregnant, the expected week of childbirth ‘EWC’ and the date she intends to start her maternity leave (I would ask for this in writing). You must respond within 28 days confirming the date her leave will end (assuming full 52 weeks are taken unless you have been advised otherwise).
Your employee may change her mind about her start date, but must give you 28 days’ notice (unless impossible due to a premature birth). Maternity leave can start any time after the 11th week before the baby is due (unless it is born early) up to the date the baby is born. Maternity leave will start automatically if your employee is absent from work for a pregnancy-related illness during the 4 weeks before the expected birth date.
Ante-natal care Pregnant employees have the right to paid time off to attend ante-natal appointments. This can include such things as relaxation classes and parent craft classes recommended by a Doctor or Midwife.
Eligible employees are also entitled to 39 weeks’ Statutory Maternity Pay. There is no exemption for smaller employers. This is made up of 6 weeks’ pay at 90% of average and 33 weeks at Statutory Maternity Pay (SMP) current at the time (or 90% of average earnings if this is less).
To get SMP she has to satisfy the following requirements: Be employed in the ‘Qualifying Week’ (15th week before the baby is due) and, at the ‘QW’ she must have at least 26 weeks’ continuous service. You must have received medical evidence (usually provided on Form MATB1) and have been told you when she intends stopping work and start claiming SMP.
Most importantly for pay purposes, in the 8 weeks (or 2 months if monthly paid) before the QW she must have been paid the average earnings level set by the Government at that time for SMP purposes. This changes best to check with the HMRC for current rate.
A woman who does not qualify for SMP may be able to claim Maternity Allowance via her local Job Centre Plus.
Rights and Contractual obligations during maternity leave
Your employee is entitled to the benefit from all her contractual terms and conditions, except pay (this is replaced with SMP if eligible) during OML. This includes such things as company cars, mobile phones, medical insurance and non-cash vouchers such as childcare vouchers and matched pension contributions. You do not have to continue to pay contractual cash benefits such a car or fuel allowance.
The right to accrue paid annual leave also continues during maternity both OML and AML leave. You may wish to discuss with your employee how this will be managed and potentially take some of this leave prior to starting her maternity leave. You also need to have a system where you ensure you advise her of any vacancies that arise while she is on leave, for which she might be interested in applying. She also has the right to be consulted about any changes to her job or current contract.
Keeping in touch days ‘KIT days’
These are up to 10 days where your employee, if they agree, may attend work and be paid without bringing either their maternity leave or pay to an end. Each attendance no matter how long is considered one KIT day.
There is no obligation on your employee to agree, but if they do, they are useful to attend essential meetings, training or other operational issues etc.
You are also entitled to make reasonable contact with your employee while on maternity leave (this is separate from the ‘KIT days’). This might, for example, be to plan return to work, or keeping her up to date with business developments.
Returning to work
Your employee returning from OML or AML will need do nothing more than turn up for work on the agreed date. If she wants to return to work before the agreed date, she has to give you at least 8 weeks’ notice. If she does not do this, you can postpone her return so that it has the benefit of the full 8 weeks’ notice. Useful if you have engaged temporary cover where you need to give notice.
There is a divide. If returning from OML she has the right to return to exactly the same job that she left on the day that her maternity leave started, unless that job has been made redundant (if this is the case you will have already initiated your redundancy procedure).
I feel it is important to note that in a redundancy situation, if there is a suitable position those employees who are on maternity, adoption or parental leave have precedence over other suitable employees within the same redundancy pool.
However, if returning from AML she is entitled to return either to the same job or, if that is not reasonably practicable, to another job which is both suitable and appropriate.
The terms and conditions must be no less favourable than those which would have applied had she not been away (including, for example, her seniority, pension rights, and any pay increases which took effect in her absence). If she is to return to such a different job, she should be contacted, advised of this and given the chance to discuss it (using a KIT day). To be clear for instance, you cannot refuse to take a woman back just because her replacement is a more effective worker!
If, at the end of either OML or AML, your employee cannot return to work because she is ill, then she must follow your sick leave procedure. You will consider her has having returned to work on the agreed date but now on sick leave. If your employee simply does not turn up then this should be investigated and managed as unauthorised absence and a potential misconduct issue. She does have the right to request holiday or parental leave and you should follow these procedures if you receive such a request.
Equality Act 2010 and discrimination
Please be aware it is direct sex discrimination to refuse to hire a woman because she is pregnant. It is not possible to justify such a refusal on economic or other grounds as a small business.
It is automatically unfair to dismiss a woman because she is pregnant, has given birth or has taken maternity leave. A woman does not need any qualifying service to bring a discrimination claim. It is also automatically unfair to dismiss a woman for a reason connected with pregnancy or childbirth.
It does not matter that there might have been other reasons for her dismissal – provided that at least part of the reason for dismissing her was to do with pregnancy, her dismissal will be unfair. Please remember there is no upper limit on the amount of compensation that can be awarded in such cases by a Tribunal.
Health and safety
You have specific duties and need to undertake a risk assessment when your employee has advised you that she is pregnant, has given birth within the previous 6 months or is breastfeeding. It must be a specific to the hazards (not a generic) risk assessment to assess whether she is exposed to any process or working conditions that may harm her or her baby. Hazards may include the following: chemicals, heavy lifting, extremes of noise and temperature, and mental or physical fatigue.
You must then take action to remove, reduce or control any identified risks.
If a risk cannot be removed, working conditions and/or hours of work must be temporarily adjusted. If such an adjustment is not possible your employee must be offered suitable alternative employment if this is available (at the same rate of pay) or she must be suspended from work on paid leave for as long as necessary to protect her and her baby’s health.
If you suspend, you must be able to provide evidence of the risk and show that less drastic measures would have been insufficient. New or expectant mothers may also have to be suspended from night work where they have a signed certificate from a registered medical practitioner or midwife stating that this is necessary in the interests of their health and safety.
Although there is no specific regulation on this, nursing mothers should be provided with a place to rest while at work and, it is good practice to provide facilities for the safe storage of expressed breast milk.
Flexible working requests
All employees with 26 weeks service are entitled submit a flexible working request for you to consider.
Therefore if your employee would like you to consider any amendments to her contract on her return she should follow your procedure for making such a request.
Additional Paternity leave (babies born to 4th April 2015)
There is currently the facility for your employee to share a portion of their maternity leave with their partner. See our HR MicroGuide on Parental leave for more information.
Shared Parental Leave (babies born from 5th April 2015)
The legislation is due to change and Shared Parental Leave will replace Additional Paternity Leave.
This is due in December 2014 and will apply to babies born from 5th April 2014.
HR MicroGuide will follow shortly.
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