Pregnancy and Maternity protection

 

Overview

You have special workplace protection when you are pregnant and a new mother. Your maternity rights fall into five categories:

  1. Protection against unfavourable treatment or dismissal
  2. Protection from discrimination
  3. Paid time-off for antenatal care
  4. Maternity Leave
  5. Maternity pay

You may have a claim in the Employment Tribunal if your Employer breaches your rights under these five categories. These rights include the following;

Health and safety during pregnancy – Your employer must make a suitable and sufficient health and safety assessment of the risks that you face at work as a pregnant employee.

Ante-natal appointments – You have a statutory right to paid time off for your antenatal care no matter how many hours you work or how long you have been working for your employer.

Maternity leave – you are entitled to one year of statutory maternity leave no matter how long you have been working for your employer.

Maternity pay – You are entitled to 39 weeks of statutory maternity pay if you qualify, although you might be lucky enough to have better terms and conditions in your employment contract.

Keeping in touch (KIT) days – You can work for your employer during your maternity leave for up to ten days. This does not mean that your maternity leave is over.

Pay and benefits – You are entitled to the terms and conditions of your employment contract during your maternity leave (for example pay rises and bonuses). You can bring a claim for discrimination or detriment if your employer breaches these terms and conditions.

Health and safety after maternity leave – Your employer must make a suitable and sufficient assessment of the health and safety risks that you face at work as a new and breastfeeding mother.

Breastfeeding – Your employer must provide you with adequate rest and meal breaks and suitable rest facilities if you are a breastfeeding mother.

Holiday pay – You continue to accrue statutory annual leave during your ordinary maternity leave and additional maternity leave.

Flexible working – If you have a child under the age of 17, you have the right to request flexible working arrangements and your employer must give proper consideration to your request using the required statutory procedures.

Written reasons for dismissal – You have the right to be given written reasons if you are dismissed whilst pregnant or on maternity leave without having to make a request. This applies no matter how long you have been working for your employer.

Unfair dismissal – It is automatically unfair to dismiss you or make you redundant because of your pregnancy or maternity.

 

The Laws that protect you during your pregnancy and maternity

There are quite a few laws that give you protection at work during your pregnancy and whilst you are on maternity leave. The most important pieces of legislation are as follows;

 

Telling your employer about your pregnancy

You are protected against discrimination and detriment from the moment that your employer knows that you are pregnant. You don’t have to tell your employer (or prospective employer) that you are pregnant until the 15th week before your baby is due. This is the date by which you have to give notice to take maternity leave. It is a good idea to tell your employer earlier so that they can take action to protect your health and safety and give you time-off for your ante-natal appointments.

Once you let your employer know that you are pregnant, your protection from unfair dismissal, detriment and discrimination kicks in – Regulation 18 MHSWR 1999

 

Health and Safety

Workplace Assessment

Your Employer will have health and safety obligations for you under the MHSWR 1999 once they have been notified that you are a new or expectant mother. Your Employer must immediately carry out a risk assessmentRegulation 16 MHSWR 1999.  If the risk assessment identifies any risks to your health and safety or to your baby, steps must be taken to remove, reduce or control the risk. If it is not reasonable to do this, or it would not avoid the risk, your employer must suspend you from work for as long as is necessary to avoid the risk.

Night Work

If you work nights and you provide a medical certificate from your GP or Midwife which says that working night shifts will affect your health, then your employer must suspend you from work, on full pay for as long as is necessary. Before being suspended on maternity grounds, section 67 ERA 1996 says that you should be offered suitable alternative work if it is available. If you unreasonably refuse the offer of alternative work, you will lose your statutory right to be paid during the period of maternity suspension.

HSAWA 1974 allows your Employer to treat you differently to your colleagues at work as a new or expectant mother, where it is necessary to comply with laws protecting your health and safety.

 

Unfair Dismissal

Under section 99 ERA 1996 and regulation 20 MPLR 1999, it is automatically unfair to dismiss a woman because of her pregnancy, childbirth or maternity leave or other pregnancy related reason.  You don’t need 2 years’ service to bring such a claim as there is no qualifying period of employment for automatically unfair dismissals. You are entitled to written reasons for your dismissal – section 92(4) ERA 1996.

 

Detriment

If you are treated badly by your Employer because of pregnancy, childbirth or maternity leave, you could additionally have a claim for detriment under section 47(C) ERA 1996. This section says that an Employee has the right not to be subjected to a detriment for a reason that relates to pregnancy, childbirth or maternity, maternity leave, parental or paternity leave or time off to look after dependants.

 

Flexible Working

Under Section 80F ERA 1996, you have a statutory right to ask your Employer for a change to your contractual terms and conditions of employment to allow you to work flexibly. This right entitles you to make a request to change your hours on your return from maternity leave. Your Employer must seriously consider your request and is only allowed to refuse for reasons laid out in section 80G (1) ERA 1996. If your application is successful, the changes to your working pattern will be permanent unless you and your Employer agree that the changes should be temporary.

 

Discrimination

The law about pregnancy and maternity discrimination is governed by the Equality Act 2010 (EQA 2010), which provides a list of characteristics that it will protect. These are called  protected characteristics. You are protected from pregnancy and maternity discrimination, because pregnancy and maternity are protected characteristics under section 18 of the Equality Act 2010.

Section 18 specifically prohibits workplace discrimination during pregnancy and maternity as follows;

It is unlawful for an employer to:

  • discriminate by treating a job applicant or employee unfavourably during the protected period (which is the period from the beginning of pregnancy to the end of maternity leave) because of her pregnancy or because of an illness she has suffered as a result of her pregnancy – Section 18(2) EqA 2010

or

  • discriminate by treating an employee unfavourably because she is on compulsory maternity leave or because she is exercising or seeking to exercise, or has exercised or sought to exercise, the right to ordinary or additional maternity leave – Sections 18(3) and (4) EqA 2010

 The protected period

Section 18(6) EqA 2010 says that the protected period begins when your pregnancy begins and ends at the end of your additional maternity leave period, or when you return to work after the pregnancy (if you return earlier). It can also end two weeks after the end of your pregnancy, if you don’t have the right to ordinary and additional maternity leave.

If after the protected period you are treated less favourably because of your pregnancy or related illness, it will still be deemed as having occurred during the protected period, and will still be regarded as discrimination – section 18(5) EqA 2010

Unfavorable treatment outside the protected period is treated as sex discrimination rather than pregnancy and maternity discrimination – section 18(7) EqA 2010

It is unlawful to discriminate against you because you are on compulsory maternity leave – section 18(3) EqA 2010

It is unlawful to discriminate against you because you are exercising or seeking to exercise, or have exercised or sought to exercise, the right to ordinary or additional maternity leave – section 18(4) EqA 2010

 

Less Favourable Treatment

Less favourable treatment during pregnancy and maternity is also covered by European Law, including the Pregnant Workers Directive (92/85/EEC) and the recast Equal Treatment Directive (2006/54/EC). For example, Article 10 of the Pregnant Workers Directive prohibits the dismissal of pregnant workers and workers on maternity leave other than in exceptional circumstances not connected with their pregnancy or maternity leave.

Your Employer has a specific obligation to protect the health and safety of pregnant women and women who have recently given birth through a risk assessment. There is a non-exhaustive list of the working conditions, processes, and physical, chemical or biological agents that may pose a risk in Annexes I and II to the Pregnant Workers Directive.

 

Job Security

Under regulation 10 MPLR 1999, you must be offered any suitable alternative vacancy in preference to other employees if there is a redundancy exercise whilst you are on statutory maternity leave. Regulation 20(1)(b) MPLR 1999 allows you to claim automatically unfair dismissal, if there is a suitable vacancy which is not offered to you.

You have a statutory right to return to the same job after ordinary maternity leave. After additional maternity leave, you have a right to return to the same job unless that is not reasonably practicable. If it is not reasonably practicable, then you must be offered a suitable alternative job, on terms and conditions which are not less favourable than the terms of your original job. If you want to return on different terms (for example part-time) and your Employer refuses, it could be indirect sex discrimination – Regulations 18 and 18A MPLR 1999

Whilst on statutory maternity or adoption leave you can agree to come to work for up to ten “keeping in touch” (KIT) days. You can use your KIT days for things like training and staff meetings.

Resources available

How to use the discrimination questions procedure

How to write a grievance about discrimination at work

How to Write a Grievance About Unauthorised Deductions from Your Wages or Salary

How to Write a Grievance That Gets You What You Want

How to Write a Grievance About Bullying and Harassment at Work

How to Write a Grievance About Changes to Your Employment Contract

How to Write a Grievance About the Behaviour of a Colleague, Manager or Supervisor

How to write a Grievance about discrimination at work

 

Disciplinary action and capability

Discrimination at work

Surviving a workplace suspension

 

 

ET1: Breach of Contract

ET1: Non-Payment of Holiday Pay on Termination

ET1: Non-Payment of Holiday Pay whilst still employed

DOCUMENTS, FORMS AND LETTER TEMPLATES

 

 

Best of the Web

Health and Safety Executive – Risk Assessments

New and expectant mothers who work

New and expectant mothers

 

 

Disclaimer

This resource is published by Employee Rescue Limited. Please note that the information and any commentary on the law contained herein is provided for information purposes only. The information and commentary does not, and is not intended to, amount to legal advice. Employee Rescue accepts no responsibility for any loss occasioned to any person acting or refraining from action as a result of the material contained in this publication.

Further specialist advice should be taken before relying on the contents of this publication. You can send an e-mail to thelawyers@employeerescue.co.uk for such specialist advice if required.

 

 

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