As an employer what do I need to be aware of in relation to my employees taking maternity leave?

Statutory Maternity Leave &Pay

All female employees who become pregnant are entitled to statutory maternity leave and those who hit certain qualification criteria are eligible for maternity pay. Others may be eligible for maternity allowance.

There are several things which all employers should be aware of when dealing with employees who are applying for maternity leave.

Legislation

The Legislation dealing with all aspects of maternity leave and providing full details of the rights and responsibilities of employers is the Work and Families Act 2006.

Notice

For an employee to claim maternity leave they should notify their employer no later than the end of the 15th week before the expected week of childbirth providing the following details:

  • The fact that she is pregnant
  • The expected week of childbirth
  • The date when she intends to start taking leave

As an employer can I insist on this being in writing?

An employer can insist on the date when she intends to start taking leave to be submitted to you in writing to ensure that you both have the correct date when the leave is to commence.

What is my employee does not give the correct amount of notice?

If an employee does not give the employer the required notification for the start of the maternity leave then she may lose her right to start her maternity leave on her chosen date although this will not affect her ability to take maternity leave.

Is there an exception to this?

The only exception to this rule that an employer is required to make is in the case where it was not reasonably practicable for the proper notice to have been given.

Commencement

When can the maternity leave start?

According to the Work and Families Act an employee’s maternity leave can start no earlier than the beginning of the 11th week before the expected week of childbirth.

What happens if she gives birth before this time?

According to the Work and Families Act if the employee gives birth before the beginning of the 11th week before the expected week of childbirth then the maternity leave will start automatically.

Antenatal Appointments

All pregnant employees must be given time of by their employer by attend antenatal treatment and appointments.

What happens if an employee has just joined my business?

An employee’s entitlement to antenatal appointments applies regardless of how long she has been in employment with a particular company.

Can I ask for any form of proof in relation to antenatal appointments?

An employer can ask for his employee to show the following documents (the only exception being the first antenatal appointment) which must be provided on request:

  • A certificate confirming that the employee is in fact pregnant
  • Some form of appointment card showing that the antenatal appointment has been made

How much do I have to pay my employee for this time off?

You should pay your employee at her normal hourly rate for any time off for antenatal care. This can be calculated by dividing her normal weekly wage by the hours normally worked during a normal working week.

My employee wishes to take this time off during a very busy period. Is there anything I can do?

It is unlawful for an employer to dismiss an employee, to select her for redundancy or subject her to less favourable treatment simply for asserting her right to attend antenatal care while pregnant.

As an employer you will have to be very careful when your employee is pregnant as the rights that she is asserting are statutory rights provided to her by the Work and Families Act.

Contract of Employment

What happens to her contract of employment when an employee is on maternity leave?

When an employee is on either ordinary or additional maternity leave then her contract of employment will remain the same and continue unless the employer or employee expressly wishes it to end.

It is unlawful to terminate an employment contract or select an employee for redundancy simply because she is pregnant. Any kind of redundancy must follow the correct statutory procedures.

What benefits will be available to my employee while on maternity leave?

During ordinary maternity leave a woman continues to be employed meaning that the time she has off for ordinary maternity leave counts as continuous employment for the purposes of calculating statutory rights such as adequate redundancy pay if made redundant and for other rights such as pensions, length of service payments and pay increments etc.

Are there any differences if the employee selects to take additional maternity leave?

During additional maternity leave there is no statutory right to receive contractual remuneration from her employer.

In some cases an employee may do a limited amount of work during this additional maternity leave in which case it will be a decision to be taken by the employer as to what contractual pay she will receive for that work.

Returning to Work

Unless otherwise notified by the employee the date which an employee will return to work following maternity leave will usually be the first working day 52 weeks after her maternity leave began as every employee is entitles to 26 weeks ordinary maternity leave and 26 weeks additional maternity leave.

Many employees will wish to agree a fixed date with their employer for when they will return.

What if my employee wishes to return to work before that date?

If an employee wishes to return to work before the above date or the agreed date then she must give her employer eight weeks’ notice of her return to work regardless of whether she is still in ordinary maternity leave or additional maternity leave.

What happens if my employee gives me less than eight weeks’ notice?

In this scenario an employer is able to postpone the return until the full eight weeks’ notice has been given. As an employer you cannot, however, postpone the return date to a date later than the end of the maternity period.

What happens if my employee wishes to return to work later than previously notified?

An employee is free to decide that she wishes to extend her maternity leave period. However if she wishes to do this she must give her employer eight weeks’ notice prior to the original return date.

What happens if my employee wishes to leave her job during her maternity leave?

If an employee wishes to terminate her contract of employment during her maternity leave then she is required to give the full period of notice specified in her contract of employment.

An employee will still be entitled to maternity leave and pay during her notice period meaning in practice that if she gives a long notice, i.e. that her contract will terminate on the day after her maternity leave was due to end then she will still be entitled to her full agreed period of maternity leave and pay.

Employee’s Return to Work after Maternity Leave

Ordinary Maternity Leave

An employee who returns to work following ordinary maternity leave is entitled to return to the same job on the same terms and conditions as previously. 

Additional Maternity Leave

An employee who returns to work following additional maternity leave is in most cases able to return to the same job on the same terms and conditions. In some cases due to the time concerned with additional maternity leave it is not practicable for an employer to take her back on the same terms and conditions she will be entitled to be offered alternative work

Dismissal

An employee who is dismissed during or at the end of her maternity leave or after she comes back to work on the grounds that she took maternity leave will be able to make a claim for unfair dismissal through an employment tribunal.