23 FAQs people ask about managing pregnant employees, maternity leave and pay
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.
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.
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 (see 12). Since April 2015, she may also qualify for Shared Parental leave and pay if her partner also meets qualifying criteria (see 7).
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.
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.
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.
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.
Since 1 October 2014, fathers, partners and parents-to-be have also had the right to unpaid time off work to attend up to two ante-natal appointments.
All mothers are entitled to 26 weeks’ ordinary maternity leave plus a further 26 weeks' additional maternity leave, irrespective of their length of service, provided they give you proper notice. Statutory maternity pay (SMP) is paid to qualifying employees for 39 weeks. To qualify for SMP the employee must:
Fathers are entitled to one week or two consecutive weeks’ ordinary paternity leave, paid on the same basis as maternity pay, at or around the birth of the child, for the purpose of caring for the child or supporting the mother. Paternity leave must be taken within 56 days of the baby's birth (or placement in the case of adoptions) and be taken as a block of one or two weeks' leave. It cannot be taken before the baby has been born (or has been placed, in the case of adoption).
Fathers, partners and parents-to-be also have the right to take unpaid time off work to attend up to two ante-natal appointments prior to the birth.
In order to qualify for paternity leave, the father (or co-adopter) must have at least 26 weeks’ service with you by the 15th week before the expected week of childbirth. They must be the biological father of the child or the husband or partner of the child’s mother. They must also have, or expect to have, responsibility for bringing up the child.
Any employee who has at least one year’s service with an employer is also entitled to take up to 18 weeks’ unpaid parental leave for the purpose of caring for a child. Parental leave may be taken until the child’s 5th birthday or, in the case of an adopted child, until five years after the placement of the child. In the case of a disabled child, an employee may take up to 18 weeks’ unpaid parental leave at any time until the child’s 18th birthday.
Entitlement to parental leave is in respect of employment with all employers. So when you are taking on new employees, it is advisable to check with their previous employers as to how much parental leave, if any, they have taken.
Parental leave may be taken in blocks or multiples of one week, up to a maximum of four weeks per year.
Since April 2015, parents in England, Wales and Scotland have benefitted from greater flexibility to arrange time off in the year after the birth or adoption of their baby due to the introduction of Shared Parental Leave (SPL) and Statutory Shared Parental Pay (ShPP).
Employees can take SPL in up to three separate blocks. They can also share the leave with their partner and choose how much time off each of them will take. SPL and ShPP must be taken between the baby’s birth and first birthday (or within one year of adoption).
An employee must give at least eight weeks’ notice of any leave they wish to take. SPL can be used either alongside, or instead of, traditional maternity, adoption and paternity leave.
This new system will be offered if an employee’s baby is due on or after 5 April 2015 or if an employee adopts a child on or after 5 April 2015.
Yes, she will be entitled to 26 weeks’ ordinary maternity leave plus additional maternity leave of a further 26 weeks, irrespective of her length of service, provided she gives you proper notice (see below).
In order to qualify for ordinary maternity leave, your employee must notify you by the end of the 15th week before the week in which the baby is due (or if that is not reasonably practicable, as soon as is reasonably practicable) of:
A pregnant employee can start ordinary maternity leave any time after the beginning of the 11th week before the week in which the baby is due.
You must keep the same job available for those who return from ordinary maternity leave. You must also keep the same job available for those who return from additional maternity leave unless it is not reasonably practical to do so. In that case, if a different job is offered, it must be on the same terms and conditions as if she had never been absent.
The courts have interpreted the meaning of ‘same job’ by considering the nature of the job, the employee’s capacity to do it and where it would be performed.
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.
There are two rates of statutory maternity pay (SMP). For the first six weeks, SMP is paid at the higher rate, ie 90% of the employee’s normal weekly earnings. Following a recent case at the European Court of Justice, ‘normal weekly earnings’ will have to include any pay rises made up to the end of her maternity leave.
For the remaining 33 weeks, SMP is paid at the lower rate of £139.58 from 6 April 2015, or 90% of the woman’s average earnings, whichever is lower.
Mothers now have the right to transfer a proportion of their maternity leave and pay to fathers. To qualify for additional paternity leave and pay your employee must:
The leave can be taken at any time from 20 weeks after the baby has been born. Leave can last between two and 26 weeks and must end before the baby's first birthday.
There are plans to extend SMP to 12 months.
Statutory maternity pay (SMP) lasts for 39 weeks and must be paid to any pregnant employee, provided that she:
She will qualify for maternity allowance, provided that she:
Maternity allowance is now payable for up to 39 weeks (previously 26 weeks) at a standard weekly rate of £139.58, or 90% of average weekly earnings if lower.
You, as employer, pay statutory maternity pay (SMP). But you can recover 92% of the amount of SMP paid by deducting that amount from your National Insurance contributions payments to HM Revenue and Customs. If you are a small employer, you may recover 100% of SMP paid plus an additional 3% compensation. You qualify as a small employer if your NI contributions amount to not more than £45,000 a year.
You need a completed form MAT B1 from your employee or a letter from her doctor or midwife which must show:
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.
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.
She does not have to give you any notice at all if she intends to return to work at the end of her maternity leave. If she intends to return before that, she should now give you at least eight weeks' notice. If the employee has adopted 'employee shareholder status', she will have to give you 16 weeks' notice if she wishes to return early.
If she fails to give adequate notice, you can postpone her return to give yourselves eight weeks' notice. You cannot postpone her return to a date later than the end of her ordinary or additional maternity leave, except with her agreement.
Your employee is entitled to take his partner's unused maternity leave and pay if he:
He can take unused leave and pay at any time from 20 weeks after the baby is born or placed if the mother has returned to work and is entitled to maternity leave, pay or maternity allowance. The leave must be taken before the child's first birthday and be taken as continuous weeks' leave.
To qualify for additional paternity pay, the employee must earn at least the lower earnings limit of £112 in the 15th week before the expected week of childbirth (or placement) and there must be at least two weeks' maternity pay remaining.
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.
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.
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.