Basics of Maternity Rights
With increasing complexity and relevance to the modern workplace; the raft of maternity rights has resulted in employers as well as employees struggling to ensure that all legal requirements are met. This is also complicated by the fact that the government is always looking for ways to enhance equality in the workplace and also to attempt to ensure that employers treat staff in a consistent manner during pregnancy and beyond.
That said there are difficulties due to the fact that maternity leave can be very costly to small business in terms of lost time and whilst the government is keen to assert the rights of individual women facing a maternity situation there is also a need to ensure that the British economy remains competitive with other countries. Over the years maternity rights have certainly increased offering seeming greater protection to women throughout the process although this has been criticised by many small businesses due to the costs that now make employing women of child bearing age a substantial risk to employers.
Ordinary Maternity Leave
There has always been a distinction drawn between ordinary and additional maternity leave although more recently this has become less defined and the benefits enjoyed during both periods become largely similar. Ordinary maternity leave is an entitlement enjoyed by any woman (subject to them complying with the notification process) regardless of length of service. Ordinary maternity leave lasts a period of 26 weeks from the point at which the leave is taken. It should be noted that this leave is only applicable to those who are employees and does not deal with workers or self employed individuals.
During this period of ordinary maternity leave a woman is entitled to retain her standard contractual benefits (with the exception of pay) and can return to her old post at the end of the leave period. Notification is necessary no later than 15 weeks before the expected week of childbirth and it is necessary for the mother to inform her employer that she is pregnant, the expected week of childbirth and the expected week that she will begin her ordinary maternity leave. Ordinary maternity leave cannot be scheduled to start before the 11th week prior to the expected week of childbirth. This information does not legally have to be in writing but this is generally required for the sake of completeness and to assist with record keeping.
Additional Maternity Leave
Anyone who is entitled to ordinary maternity leave at the point at which they are due to give birth will also be entitled to additional maternity leave of an additional 26 weeks. The key difference is that the terms of the employment will not continue as they did throughout the ordinary maternity leave period. This means that whilst the employee will be entitled to return to work after additional maternity leave into the role they left (or a suitable alternative) they will not retain the other benefits such as company car. That said, many employers will allow employees to retain these benefits and the individual contracts may enhance what would otherwise be available by law.
Statutory Maternity Pay
Any woman taking maternity leave is entitled to statutory payment of maternity pay provided she has earned at least the earnings lower limit (which for the year 2009 /2010) was £95 per week and has been continuously employed for a period of 26 weeks up to the expected week of childbirth. These payments are made to the woman through her employer and cannot be claimed back by the employer should she choose not to return to work after maternity leave. The employer will be able to reclaim the amount from the government.
Statutory maternity pay is paid for a total of 39 weeks with the first six weeks of leave being paid at 90% of the average earnings and the remaining 33 weeks being paid at the relevant prescribed rate for that year. This prescribed rate is the same for all women regardless of their previous earnings.
Many contracts will increase this entitlement for example to 100% for the first six weeks; however there may also be a clause in the contract which requires this to be paid back should the woman not return to work and these additional payments are not a legal entitlement.
Other Maternity Based Issues
Pregnancy Related Absence
During the period of pregnancy, and once the employer has been duly notified of the pregnancy the woman has rights to certain time off. For example there is a statutory right to time off for ante-natal appointments regardless of hours worked or duration of employment. Where it is deemed no longer safe for the woman to be in work the employer may require her not to work but will still be required to make full payment.
If a woman becomes ill less than 11 weeks prior to the expected week of childbirth for a pregnancy related issue the employer is able to consider her maternity leave to have begun.
Anyone who has been employed for a continuous year and has a child aged under 5 (or under 18 if the child is disabled) is entitled to 13 weeks unpaid leave to care for the child and this is often used at the end of maternity leave to extend the period at home, albeit in a non-paid way. This can also be used by fathers in order to increase their time off during the early years. For more information on a father’s right to time off from work following the birth of a child please see the article on ‘parental leave‘.
Employers need to consider their processes for dealing with notifications of pregnancy.
Consideration over the terms of pay during maternity leave needs to be given.
Roles need to remain available for those on maternity leave (or suitable alternatives need to be available).