As we celebrate Mothering Sunday on 19 March 2023, what better time to remind employers and employees of the rules and regulations which apply to new and expectant mothers in the workplace!
Under the Equality Act 2010, employees and workers are protected from discrimination on the grounds of pregnancy during the “protected period” which runs from when the employee becomes pregnant, until the end of maternity leave.
Obligation to Inform the Employer of Pregnancy
The general rule is that a pregnant employee should inform their employer of their pregnancy by the 15th week before their expected week of childbirth, to entitle them to take maternity leave and pay. However, there is no obligation for job applicants to inform the employer of their pregnancy and generally speaking employers should avoid asking applicants if they are pregnant or planning to have children.
Health and Safety Obligations
Under section 16(2) of the Management of Health and Safety at Work Regulations, all employers are under a duty to make a suitable and sufficient assessment of risk to health and safety which the employee may be exposed to at work. Common risks include lifting and carrying, excessive noise, handling of chemicals and extreme heat. All employers are under a duty to assess workplace risks and alter working conditions or hours of work to avoid any significant risk to the health and safety of new or expectant mothers in the workplace as failure to do so may be considered discriminatory.
Maternity Leave and Statutory Maternity Pay
All pregnant employees, regardless of length of service, are entitled to up to 52 weeks’ maternity leave. This is comprised of 26 weeks ordinary maternity leave (“OML”) and 26 weeks of additional maternity leave (“AML”).
Eligible employees that have at least 26 weeks continuous service at the end of the qualifying week are entitled to statutory maternity pay. This is paid for up to 38 weeks. The first 6 weeks will be paid at earnings related rate (90% of average earnings), and the remaining 33 weeks will be paid at a prescribed rate (the lower of £156.66 or 90% of average gross weekly earnings). Some employers will provide contractual maternity pay, at an enhanced rate from the statutory entitlement.
Employees on maternity leave will still accrue annual leave as normal and it is generally best practice for employers to discuss how the employee would like to take this leave. Some employees may prefer to take this prior to maternity leave beginning, whilst others may prefer to scatter this throughout the leave year or take it as a bulk before returning to work.
Pregnant employees also have a right to carry accrued untaken holidays into the next leave year if it has not been reasonably practicable for them to take the leave when they return from maternity leave.
All pregnant employees are entitled to paid time off during working hours to receive antenatal care, regardless of length of service. Antenatal care is not defined by legislation; however government guidance confirms that this can include medical examinations, appointments with Health Visitors, Midwives and so forth. Refusal to allow an employee time off, and any detriment to which the employee is subjected as a result of taking time off, will amount to a detriment under section 47C of the Employment Rights Act 1996. It may also be considered discriminatory under section 18(2) of the Equality Act 2010.
Pregnancy Related Sickness Absence
Employers should proceed with caution where a pregnant employee is absent from work due to a pregnancy-related illness as any unfavourable treatment due to the absence may constitute pregnancy and maternity discrimination.
Employers must also avoid treating pregnant employees or those on maternity leave unfavourably when considering promotional opportunities. For example, it would be discriminatory to:
- Not tell an employee about a suitable job vacancy because they are pregnant or on maternity leave;
- Turn down an application from an employee because they are pregnant or on maternity leave;
- Discourage an employee from applying for promotion because they are pregnant or on maternity leave
Dismissal and Redundancy
It is automatically unfair to dismiss or select an employee for redundancy due to their pregnancy. This means that the employee does not require two years’ service to pursue an unfair dismissal claim against the employer.
At present, in the unfortunate event of miscarriage after 24 weeks of pregnancy, workers are legally entitled to two weeks’ paid bereavement leave. However, miscarriage within the first 24 weeks is not legally classified as “childbirth”, therefore parents have no statutory right to maternity, paternity or parental bereavement leave. Whilst some employers may have a policy which allows employees a period of paid leave in the event of pregnancy loss, in the absence of a statutory entitlement for this, many parents have to take sick leave, annual leave or even unpaid leave if they are unable to return to work after their loss.
The UK Parliament is presently considering a Miscarriage Leave Bill, which, if it becomes law, will create a statutory right to three days of paid leave for parents who suffer a loss before 24 weeks pregnancy.
In the meantime and whilst we wait to see if the Bill becomes law, employers can take their own steps to help support workers dealing with loss of pregnancy. In 2021, the Miscarriage Association launched a campaign asking for a Pregnancy Loss Pledge. By signing, employers agree to implement a pregnancy loss policy and create a supportive and understanding environment for employees, including offering time off and creating an open and supportive culture. Some large employers such as John Lewis and Kellogg’s have already taken this approach.
Importance of Policies and Procedures
Having a Pregnancy, Maternity and Pregnancy Loss policy in place and implementing this accordingly can ensure that both employers and employees have a clear understanding of the entitlements associated with new and expectant mothers. In relation to pregnancy loss, a policy can send a clear message to employees that there is support available and help remove stigma. Having policies in place can also help protect employers from potential discrimination claims.
If your organisation is considering introducing Maternity and Pregnancy Loss Policy, or requires any advice in respect of any other aspect of Employment Law including Shared Parental Leave, Flexible Working or Pregnancy and Maternity Discrimination, please get in touch with Jackson Boyd’s Employment Team. We can also provide training on workplace culture, discrimination and unconscious bias.