Jo Seery discusses some of the key issues workers face when they become pregnant and want to exercise their rights to maternity leave, in particular issues around risk assessments, annual leave, sickness and returning part time.
Employers have a range of obligations once a woman has informed them that she is pregnant, so it’s important that pregnant women (and their union representatives) know what these are and ensure they are fulfilled.
Risk assessments
Under health and safety regulations, employers have to carry out two different kinds of risk assessment for women of “childbearing age” (this is not defined). The first involves assessing any general risks they may face, including hazards posed by processes, working conditions or any physical, biological or chemical agents that could pose a problem for their health.
Then, once an employee has told her employer that she is pregnant, has given birth in the last six months or is breastfeeding, the employer must carry out a further risk assessment (and review it on an ongoing basis) of any other specific health and safety risks.
As the duty is to assess the risk to the working environment (and not the worker herself), the employer does not have to review the situation if, say, the employee becomes more tired as a result of being heavily pregnant. If, however, this tiredness means she can no longer stand on her feet to work, the employer should reassess the risks to her health and safety.
Employers have to keep a record of the findings and inform the employee about any risks, if any, the assessment has identified.
The employer should consult with the employee when carrying out the assessment, which should include doing an inspection of the work area and how they do their work. If the employer fails to carry out a proper risk assessment or ignores a risk that has been flagged up, they could face a claim of sex or pregnancy discrimination.
If the employer identifies a risk, they have to do something to avoid it. If that is not possible, they have to alter the woman’s conditions and/or hours of work with no loss of pay or benefits. If the working conditions or hours can’t be altered, the employer has to offer suitable, alternative work.
Only if there is no suitable work to offer may they suspend the woman on full pay for as long as is necessary to protect her from the risk.
If the employee is not offered suitable alternative work, she can bring a claim in a tribunal within three months less one day of the first day of being suspended.
Sickness
If a woman has a pregnancy-related illness at any time in the four weeks leading up to the week in which her baby is due, then her ordinary maternity leave and statutory maternity pay (SMP) will automatically be triggered, even if she feels fit enough to return to work.
Although pregnancy-related absence is not defined in the regulations, it could include back pain, high blood pressure, anaemia, fatigue and urinary track infections. As it will often be difficult to know whether it is pregnancy-related, it’s best to obtain a medical certificate from a GP stating the cause of the sickness.
Although the regulations state that a pregnancy-related illness in the four weeks before the birth will trigger ordinary maternity leave and statutory maternity pay, some employers may agree to delay the start of the leave so that the woman does not lose any of her entitlement. However, this will not stop SMP from being triggered.
This then poses a problem as the regulations state that SMP cannot be paid during any week in which the employee works. So if she stays in work she will lose her entitlement to the statutory maternity pay element for each week she works.
Women should therefore seek advice from their union before reaching an agreement with their employer to continue working where maternity leave would have been automatically triggered because of a pregnancy-related sickness absence.
However, if the illness has nothing to do with her pregnancy (for instance, she had flu), then the employer must allow her to return to work after her sick leave, just like any other worker.
Redundancies
If a woman is made redundant during her maternity leave, her employer must offer her suitable, alternative employment (if it exists) that is appropriate for her to do and that is not substantially less favourable than her previous job.
She has priority in being offered alternative work over other staff who are not on maternity leave.
The courts have held that the suitability of a vacancy must be assessed from the employer’s perspective and not the employee’s. The employer should, however, take into account the employee’s work experience and personal circumstances.
Returning part time
Women returning from maternity leave (whether ordinary or additional) do not have an automatic right to return part time.
After the first 26 weeks, they have the right to return to their old job on terms and conditions no less favourable than those prior to the leave.
After the full 52 weeks, they have the right to return to a suitable and appropriate alternative job on no less favourable terms and conditions, if it is not reasonably practicable for them to return to the job they were doing prior to their maternity leave.
By wanting to return on part time hours the woman is effectively requesting to return to work on different terms and conditions, which the regulations do not allow. She may, however, be able to argue that it amounts to indirect sex discrimination not to allow her to return part time.
For instance, someone who wants to return to work on a three-day basis but whose employer says they can only offer reduced hours over five days could argue that a requirement to work every day puts more women at a disadvantage compared with men.
The issue is likely to be whether or not the employer is justified in requiring the woman to work every day of the week. The employer would have to show they have a legitimate aim and that the means of achieving that aim (reduced hours over five days) are proportionate.
Annual leave
Women continue to accrue paid statutory holidays under the Working Time Regulations 1998 during their maternity leave.
Although the regulations state that workers are not entitled to be paid for statutory holidays that they have been unable to take during the leave year, case law has established that, if they fall during a period which coincides with a woman’s maternity leave (such as a factory closure), then she should be able to take that annual leave at some other time.
This could be either before or after the maternity leave even if that means the holidays would have to be taken in a new leave year.
If the woman wants to take the leave after she returns to work, she has to give her employer notice that is twice the length of the holiday she wants to take.
For example, if she wants to add four weeks’ holiday onto the end of the maternity leave period, she would need to give eight weeks’ notice in advance. If the employer refuses or does not allow her to take the holiday, this may amount to sex discrimination.
Surrogacy
The surrogacy provisions are complex. This is because there are several ways surrogacy can occur and they depend on whether the intended mother has donated an egg and also whether the sperm of the intended father is used.
If an embryo is created using gametes from two anonymous donors (in other words, not from either of the intended parents) this is not considered to be surrogacy. The intended parents in a surrogacy usually obtain a parental order; this is not the same as adoption.
In terms of available leave, only surrogate mothers are entitled to take full maternity leave regardless of whether or not they continue to have contact with the child following birth.
Intended parents are eligible for parental leave as they will have parental responsibility for the child. This will be the case even though a parental order cannot be made within six weeks of the child’s birth. This is because parental leave is available when an employee expects to have responsibility for a child.
The intended father or other parent may be entitled to paternity leave even if their partner does not qualify for adoption leave, if they are the child’s father.
Under the government’s proposals for flexible parental leave published in November 2012, intended parents who apply for a parental order may qualify for flexible parental leave in the future (see separate article Rights to paternity leave and pay).