12 FAQs people ask about managing pregnant employees
- Am I allowed to ask a woman at a job interview whether she is or intends to become pregnant?
- A new employee has just announced she is pregnant. Surely we can just dismiss her?
- We have a part-timer who has just announced that she is pregnant. What is she entitled to?
- Do I have any obligations in respect of a pregnant employee's health and safety?
- I've got a pregnant employee who seems to be permanently sick. How much time off do I have to give her?
- Do I have to put up with a pregnant employee who keeps on disappearing for maternity appointments?
- We can't function without someone doing the job that a pregnant employee is currently doing. Can we take on a replacement?
- We have taken away an employee's company car while she is on ordinary maternity leave. She says this is unlawful. Is it?
- What do I need to know about making someone redundant during pregnancy or maternity leave?
- An employee who has had a baby said she was coming back a month ago, but keeps on sending sick notes instead. What can we do?
- An employee wants to come back on a part-time basis. This does not suit us. What can we do?
- The replacement has turned out to be much better than the woman she replaced. Can we keep her and move the new mother sideways?
1. Am I allowed to ask a woman at a job interview whether she is or intends to become pregnant?
You should not ask personal information that is not relevant to the job. Questions relating to pregnancy, children and parental responsibility are likely to be discriminatory and could be construed as evidence that you intend to discriminate. Any questions that you do ask, and which are relevant to the job, should be asked to both men and women equally.
2. A new employee has just announced she is pregnant. Surely we can just dismiss her?
No, because you could face an unfair dismissal claim. If you dismiss an employee for a reason connected with pregnancy (or maternity leave or parental leave), it would be 'automatically unfair' and you will be liable for unfair dismissal as well as sex discrimination.
3. We have a part-timer who has just announced that she is pregnant. What is she entitled to?
She is entitled to be treated no less favourably than a full-timer. Like a full-timer, she has the right to ordinary and additional maternity leave, the right to return to her job after maternity leave and she may be entitled to statutory maternity pay. Since April 2015, she may also qualify for Shared Parental leave and pay if her partner also meets qualifying criteria. See Maternity, paternity and adoption leave and pay FAQs.
She is also entitled to all of her normal terms and conditions of employment, except remuneration, during the period of her ordinary maternity leave and additional maternity leave.
4. Do I have any obligations in respect of a pregnant employee's health and safety?
There are important issues you must take into account. You must ensure that all pregnant employees take at least two weeks off work (four weeks, in the case of employees who work in factories) immediately following the birth. In addition, you must assess the health and safety risks posed to pregnant workers if the work is of a kind that could involve a risk of harm or damage to them or their baby.
If this assessment reveals that the health or safety of the employee is threatened, you must take all reasonable measures to avoid the risk. If there is still a risk, you must alter the employee's working hours or conditions of work, if this would remove the risk, and it is reasonable to do so. Otherwise, you must suspend the employee on full pay for as long as is necessary to protect her health or safety, or that of her baby.
5. I've got a pregnant employee who seems to be permanently sick. How much time off do I have to give her?
You should treat her in the same way as you would treat any other sick employee, and allow her to take sick leave in accordance with your sickness procedure. Is her illness pregnancy-related? If so, avoid taking any unfavourable action against her during her pregnancy and maternity leave, on account of her illness. Otherwise, you leave yourself open to a claim for sex discrimination and unfair dismissal. If the employee is absent from work wholly or partly because of pregnancy, during the four weeks before the week in which the baby is due, the ordinary maternity leave period will start automatically, even if the employee intended it to start at a later date.
6. Do I have to put up with a pregnant employee who keeps on disappearing for maternity appointments?
Yes. A pregnant employee is entitled to paid time off for ante-natal care, which may include parenting and relaxation classes. You cannot unreasonably refuse a pregnant employee time off, however you can ask for evidence of the appointments such as doctor's letter or an NHS appointment card.
Fathers, partners and parents-to-be also have the right to unpaid time off work to attend up to two ante-natal appointments.
7. We can't function without someone doing the job that a pregnant employee is currently doing. Can we take on a replacement?
Yes - but make it plain that you are recruiting them to provide maternity cover, and will employ them on a temporary or fixed term contract.
8. We have taken away an employee's company car while she is on ordinary maternity leave. She says this is unlawful. Is it?
Yes. During the ordinary maternity leave period, she is entitled to all of her normal terms and conditions of employment, except 'remuneration'. The same rules also apply to additional maternity leave.
The normal terms and conditions of employment may include any non-cash contractual benefits such as a company car, home PC or gym membership, health benefits and any contractual entitlement to holiday above the statutory minimum.
9. What do I need to know about making someone redundant during pregnancy or maternity leave?
Avoid it if you can. Unless you are closing down a whole site, or a whole section, you may find it difficult to rebut the suspicion that you have selected this employee for redundancy because she is pregnant, which could leave you open to penalties for unfair dismissal and sex discrimination.
If a redundancy situation arises during an employee's ordinary maternity leave or additional maternity leave, you must consider whether it is reasonably practicable to continue to employ her in her existing job. This will involve considering whether the employee on maternity leave, or some other employee, should be selected for redundancy. If you decide to select the employee on maternity leave, you must offer her any suitable vacancy that is available, or pay redundancy pay, just as with the other employees affected.
10. An employee who has had a baby said she was coming back a month ago, but keeps on sending sick notes instead. What can we do?
The employee does not lose her right to return to work. Therefore, you should treat her in the same way as any other employee on sick leave, including paying her normal sick pay entitlement, whether contractual sick pay or Statutory Sick Pay. If the sickness continues you may eventually want to consider dismissing her, in which case you will have to implement your full dismissal procedures. In assessing her sickness record, you must ignore any periods of sick leave for a pregnancy-related illness during her pregnancy and maternity leave. Alternatively, you and the employee could agree to postpone her date of return from maternity leave.
11. An employee wants to come back on a part-time basis. This does not suit us. What can we do?
You are obliged to give the request consideration. If you decide not to grant it, you must provide the employee with good business reasons for your decision. You must be able to show that these reasons are objectively justified, in order to avoid liability for sex discrimination. You should try to be flexible in your approach, as far as possible. The fact that the job has not been done on a part-time basis before will not in itself justify refusing the employee's request.
Almost all employees with at least 26 weeks' service have the right to apply to work flexibly, provided that they have not made another application within the preceding 12 months. Employee shareholders are an exception to this rule.
If you turn down a request from a qualifying employee, he or she may make a claim against you in an Employment Tribunal on the grounds that you have failed to comply with the procedure, or that your decision to reject the application for flexible working is based on incorrect facts, or is not a permitted business reason.
12. The replacement has turned out to be much better than the woman she replaced. Can we keep her and move the new mother sideways?
If the new mother is taking ordinary maternity leave, you must keep her original job open for her. If she is taking additional maternity leave, she has the right to come back to her original job or, if that is not reasonably practicable, to a suitable alternative. You could have a hard job demonstrating that it was not reasonably practicable to reinstate her. The key point is that the new mother has a statutory right to return to her old job, and this outweighs any consideration about the relative merits of the replacement. However, the new mother also has the right to ask for part-time work, which might solve your problem.
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