Maternity, the law, and you

Maternity, the law, and you

Everything surrounding the arrival of a new baby can be extremely exciting. Understanding the accompanying work-related laws, on the other hand, is not. I hope that this article makes the very quotidian (but important) information that bit more digestible.

The first thing on many people’s mind is maternity leave, so this is a good place to start.

You have to be an employee in order to qualify for maternity leave.

As an employee, you have the right to take upto 52 weeks’ maternity leave. There is a misconception that you must have worked for the employer for a specific period of time. This isn’t the case. The right to 52 weeks’ exists from the first day of you starting your employment – there is no need to worry about the number of working days you’ve accrued.

You can, if you want to, work right up to giving birth, or you can start your maternity leave from up to 11 weeks before your baby is due – that is a choice you can make. That said, once your baby is born, you must take compulsory maternity leave. As an employee, you must take a minimum of two weeks’ maternity leave starting with the day on which childbirth occurs. This is extended to four weeks for those classed as factory workers. If your employer allows you to work during compulsory maternity leave, they will be guilty of a criminal offence.

So, if we have compulsory maternity leave, what is ordinary maternity leave?

Ordinary maternity leave (or OML for short) is a period of 26 weeks’ leave that is available to employees regardless of length of service, who give birth and comply with the notification conditions. The provisions set out in the Maternity and Parental Leave etc. Regulations 1999 set out that an employee must notify her employer no later than the end of the 15th week before the expected week of childbirth (EWC). If that is not possible it should be as soon as reasonably practicable that:

  • The fact that she is pregnant.
  • The EWC.
  • The date when she intends her OML to start, which must be a date no earlier than the beginning of the 11th week before the EWC.

Your notification to your employer doesn’t need to be in writing unless your employer requests this. It is advisable, however, for an employee to give notice in writing to their employer of at least the fact she is pregnant. Without this notice, your employer’s extra health and safety duties are not triggered.

If you become pregnant whilst on maternity leave, you have to notify your employer of the pregnancy in the normal way (as above). It is possible for you not to return to work at the end of the first maternity leave and could continue straight into the second maternity leave period.

Some of you will have also heard of additional maternity leave(AMT) , this is on top of OML.

AML follows right after the end of OML and last for up to a further 26 weeks, giving an employee a total entitlement of 52 weeks’ statutory maternity leave, and is also available to all employees regardless of length of service.

So, when should you tell your employer you’re pregnant?

As a pregnant employee, you are not required to tell your employer of your pregnancy until the 15th week before the EWC as mentioned above. However, you will not be able to benefit from rights such as the entitlement to paid time off for antenatal care, risk assessments and statutory protection on account of your pregnancy from discrimination or dismissal until your employer is made aware that you are pregnant (this is especially important for those who work in schools). Therefore, from an employee’s point of view, it is advisable you inform your employer of your pregnancy as soon as possible.

Your employer is under a duty to protect your health and safety as well as anyone else who may be affected by the undertaking. There are special duties that apply to your employer in respect of new or expectant mothers in the workplace. These duties are set out by the Health and Safety Executive (HSE).

In summary, the law requires employers:

  • To assess the workplace risks posed to new or expectant mothers or their babies
  • To alter the employee’s working conditions or hours of work to avoid any significant risk
  • Where it is not reasonable to alter working conditions or hours, or would not avoid the risk, to offer suitable alternative work on terms that are not “substantially less favourable”
  • Where suitable alternative work is not available, or the employee reasonably refuses it, to suspend the employee on full pay

As a pregnant employee, you have a statutory right to paid time off during working for the purpose of receiving antenatal care, regardless of hours worked or length of service.

If you are treated unfavorably during the period in which you are protected as a pregnant employee, because of a pregnancy-related illness, this will constitute unlawful pregnancy and maternity discrimination and any dismissal will be automatically unfair. In addition, any other detriment will be discriminatory as well as unlawful. Any pregnancy-related absence or maternity leave absence should therefore be ignored in respect of any promotion decision.

The sick pay given to you as a pregnant employee must not be less than the sick pay given to a non-pregnant employee. This is a right born on the back of a ruling by the Court of Justice of the European Union.

More on maternity pay…

Maternity leave and maternity pay a very distinct. Some women are entitled to maternity pay when they go on maternity leave; others are not entitled to it. One key term to know is the qualifying week. This is calculated by counting 15 weeks back from the week the week you’re due to have your baby. You may be entitled to Statutory Maternity Pay (SMP). The eligibility criteria is:

  • You have worked continuously for the same employer for 26 weeks before you’re qualifying week.
  • You earn at least £120 a week (the LEL). If you’re earnings vary, it will need to be the case that you earned at least £120 a week on average for the 8 weeks before your qualifying week.
  • You are still pregnant 11 weeks before the week in which it is expected that childbirth will occur
  • You give the employer at least 28 days’ notice of the date you intend the maternity leave to start or, if that is not reasonably practicable, as much notice as is.
  • You have ceased working.

SMP is paid for up to 39 weeks. For the first 6 weeks, you will get 90% of your average weekly earnings, and for the following 33 weeks you will get either a prescribed weekly rate which is set by the government per tax year (currently £156.66 for 2022/23) or 90% of your average weekly earnings – whichever is lower.

For those eagle eyed readers, you may have noticed that maternity leave is for up to 52 weeks while SMP is only 39 weeks. This means that the last 13 weeks are unpaid. Remember this is the legal minimum – your employer may offer you more money than the legal minimum, or maternity pay for a much longer term than the legal menium. The best thing to do is to have a chat with them, look at your workplace policies and also check what your employment contract says.

When should I tell my employer I’m pregnant?

To finish, I thought it would be sensible to go over some more in relation to telling your employer you’re pregnant.

You must tell your employer that you are pregnant at least 15 weeks before your baby is due if you’re entitled to paid maternity leave – if this is not possible, perhaps because you didn’t know you were pregnant, then as soon as possible. If you think 4 months before in your head, you will be covered. You must all tell them on what week your baby is due and when you want to start your maternity leave. Your employer can ask to see evidence of your pregnancy and due date such as a letter from your medical professional, or the MAT B1 certificate – a certificate you will receive not more than 20 weeks before the expected week of childbirth.

Your employer will need to reply to you within 28 days, confirming the date your maternity leave will run to. This should be in writing but if it isn’t, it would be sensible to ask for it.

Remember, when you apply for a job, you do not need to tell the employer you are pregnant. If you do disclose you’re pregnant, they cannot use the pregnancy as a reason for rejecting you or otherwise treat you differently because of your pregnancy.

I will wrap this up here but do check back as there will be regular updates to maternity, the law and you as well as specific areas related to maternity such as paternity leave and rights.

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About me

30 something from Yorkshire. I work in the public sector and a trade union. I have a few degrees ranging from science to law and other qualifications in between. Anything you’d like to know, pop over to the contact me page.