Claire Jenkins looks at the rights and entitlements of employees to maternity and adoption leave, highlighting some of the special situations that can arise.
Although the law clearly states that it is unlawful discrimination to dismiss or otherwise disadvantage an employee for a reason related to her pregnancy or maternity leave, thousands of pregnant women lose their jobs every year simply for being pregnant.
Maternity leave
All pregnant employees are entitled to 52 weeks’ maternity leave, irrespective of how long they have worked for their employer or how many hours they work per week. This is made up of 26 weeks’ ordinary maternity leave and 26 weeks’ additional leave.
Women do not have to take all their leave, but it is a criminal offence for an employer not to ensure that the woman takes two weeks immediately after the baby is born. Factory workers are prohibited from working for four weeks after the birth.
Self-employed women are not covered by the regulations.
Ordinary maternity leave
To apply for ordinary maternity leave, the woman must tell her employer (in writing if the employer asks) at least 15 weeks before the week in which the baby is due (if possible):
- that she is pregnant
- the date when the baby is due (the employer can ask to see evidence such as a medical certificate, MAT B1 form)
- the date when she intends to start her maternity leave.
If it is not reasonably practical for the woman to give that much notice, perhaps because the baby is premature or because she has just started working for that employer, she has to give notice as soon as she can.
If the woman fails to comply with any of the notification requirements, or gave them late and cannot satisfy the “not reasonably practical” test, she loses her right to start ordinary maternity leave on the date she had hoped.
Once the employee has told the employer when she intends to start the leave, the employer must write to her within 28 days, telling her when she is expected to return, based on the assumption that she wants to take her full 52-week entitlement.
If the woman is entitled to contractual maternity leave, she can take advantage of whichever right (statutory or contractual) is more favourable to her.
Additional maternity leave
The right to additional maternity leave starts straight after the end of ordinary maternity leave and runs for a further 26 weeks (unless the employee is dismissed for some reason before that date).
Giving notice of return to work
Women are not required to give any notice to their employer that they intend to return to work after the end of their full maternity leave.
If the woman does not wish to return, she must hand in her notice in the normal way before the end of her maternity leave period.
If the woman wants to return before the end of her full leave period (whether ordinary or additional), she has to tell her employer eight weeks before the date she intends to come back. The employer can postpone her return until they’ve received that notice although not past the end of the 52-week period.
If the employer refuses to allow the woman to come back, this would constitute an automatic unfair dismissal unless this was because the woman had been made redundant, or if it was not reasonably practical to take her back because of an internal reorganisation, for example.
In these circumstances, the usual rules on unfair dismissal would apply and the woman might also have claims for pregnancy-related and sex discrimination.
Terms and conditions during and after maternity leave
During maternity leave, the woman is entitled to all the same terms and conditions (apart from the right to be paid), had she not been away from work. Equally, she is bound by any obligations under her contract, unless they conflict with her right to take leave.
All service-related benefits accrue during both ordinary and additional maternity leave.
After ordinary maternity leave, a woman is entitled to return to the same job that she was doing before she left on terms that are no less favourable.
The same applies after additional leave but with a caveat: if it is not reasonably practical for the employer to allow the woman to return to her old job, she can be offered an alternative job that is “suitable and appropriate” in the circumstances.
Sickness
If an employee is absent because of sickness during her pregnancy, this should not automatically trigger her maternity leave and she should be treated like any other member of staff who is off sick.
However, if the employee is sick during the last four weeks of her pregnancy, the employer can insist that her maternity leave starts, although some employers may be prepared to overlook odd days of absence.
Once the employee’s maternity leave has started, she cannot claim sick pay from her employer if she becomes ill. If she is sick when her maternity leave is due to end, the usual sickness procedures will apply even if she cannot physically return to work.
Maternity equality clause
The Equality Act 2010 inserts a maternity equality clause into the woman’s contract that states:
- any pay increase the woman receives (or would have received had she not been on leave) must be taken into account when calculating her maternity-related pay
- any bonus to which she is entitled must be paid at the time she would have received it had she not been on maternity leave
- her pay on her return to work must take account of any pay increases she would have received had she not been on statutory maternity leave.
Special situations
If the woman gives birth in the four weeks before the baby is due, her maternity leave will start automatically the day after.
It also starts automatically if she is off work with a pregnancy-related illness during that month (unless she and her employer come to an agreement allowing her to return).
If the baby is stillborn after 24 weeks of pregnancy, the woman is still entitled to take her maternity leave.
If the woman becomes pregnant again just before her leave is due to finish, she is entitled to another period of maternity leave in the same way as the first pregnancy.
However, if she doesn’t return to work (or doesn’t return for very long) she may not earn enough to qualify for statutory maternity pay for the second period of leave, as it is based on her average earnings from weeks 17 to 25 of her pregnancy.
Keeping in touch
Except for the first two weeks after the birth, employees can do up to ten days’ work for their employer without losing any maternity pay or leave. These keeping-in-touch days could include attending a training day or staff meeting or actually doing a full day’s work.
Any work the employee does will count as though she had worked a full day, (even if she only does two hours). Women are not obliged to take up these days, nor is the employer obliged to offer them.
Adoption leave
Statutory adoption leave largely mirrors maternity rights, with ordinary adoption leave reflecting ordinary maternity leave, and additional adoption leave mirroring additional maternity leave.
To qualify, the employee must:
- be the child’s adopter
- have been continuously employed for at least 26 weeks ending with the week when they were notified of having been matched with the child
- have agreed the date of placement with the adoption agency.
The employee has to tell their employer (in writing, if the employer wishes) within seven days of being notified of a match, or as soon as is reasonably practical if that is not possible:
- the date on which notification was received
- the expected date for the placement
- the date on which adoption leave is to begin
- how long the leave will last.
The start date can be varied if the employee gives the employer 28 days’ notice of the change or, if not reasonably practical, then as soon as possible.
Overseas adoptions are also covered, in which case the employee must give their employer notice of:
- the date on which they expect to receive official notification and the date on which the child is expected to enter the country
- the date on which the employee has chosen to begin their period of adoption leave
- the date on which the child enters Great Britain.
The employee will also be entitled to 26 weeks’ additional leave as long as she took ordinary adoption leave and it did not end prematurely.