Pregnancy and Your Employment Rights
Author: Mike Massen
Author: Mike Massen
CONGRATULATIONS!! To both you and dad. Youre expecting a baby and its an exiting and also an anxious time. Youll have a lot to think about. Watching the bump growing; scans, shopping for prams and cots and decorating babys room, and all those other new things to buy.Thelast thing you want to worry about is what isgoing to happen at work. Howto deal with work and whatto say? Willyou still get paid and what if they say they cant holdyour job open ifyou areoff for too long? Don't worry, the law provides you with a number of rights both during your pregnancy and after your baby has been born and this artilce is designed to provide you with a quick, at a glance guide to those rights, ensuring that both you and your employer are clear on your entitlements during this wonderful (and sometimes stressful) time. Some of the information contained in this eBook may not apply to you if you do one of the jobs listed below. You will need to check your contract of employment or speak to your HR department or RHQ to see what maternity rights you have at work. This applies to: Women police officers (although not civilian employees) Women in the Army, Navy, or Air Force Share fisherwomen. Can I request time off for scans and other antenatal appointments? When you are pregnant you are entitled to paid time off to attend appointments for antenatal care made on the advice of your GP, midwife or health visitor. Antenatal care will include scans and blood tests etc, but can also include parent-craft and associated classes. Apart from your first appointment, if your employer asks for it, you will have to show a certificate from your GP, midwife or health visitor, confirming your pregnancy as well as an appointment card or letter showing that an appointment has been made. What about time off to have my baby? Regardless of how long you have worked for your employer, ordinarily you have the right to take up to 52 weeks' maternity leave. However, you should be aware that length of time with your employer has an impact on your pay, but more on that later. The first 26 weeks of maternity leave are called Ordinary Maternity Leave (OML). During OML, you are entitled to keep all the same rights under your contract of employment as though you were still at work. The only difference is that you will not get your normal pay unless your contract provides for it. You can also take an additional 26 weeks' maternity leave; which is called, not surprisingly, Additional Maternity Leave (AML). This makes up the 52 weeks' maternity leave. If you do decide to take AML, this has to follow straight on from your OML and you cant have a break between the two. To qualify for your maternity leave, all you have to do is tell the following toyour employer by the end of the 15th week before your baby is due: That you are pregnant. The expected week of the birth (you will need to give your employer a medical certificate called a MATB1. Your midwife will provide you with this) The date you wish to begin your maternity leave. The start of your OML can be any date that you like, as long as it isnt any earlier than the beginning of the 11th week before your baby is due, right up until the week of the expected delivery date. You will sometimes see this referred to as EWC, which stands for Expected Week of Confinement. This harks back to the days when pregnant ladies were locked in their bedrooms, or a shed, with a midwife and some hot towels, or something like that. Fortunately, today it simply means the week in which your baby is due. Your employer must then write to you within 28 days of your notifying them, confirming this and setting out your return date. You are able to change this date and return to work earlier if you wish, so long as you give your employer 'eight weeks' notice. If you are lucky then your employment contract may give you more leave allowance, or benefits than those referred to above, but your employer may not try to give you less than your legal entitlement. What are my rights whilst Im on Maternity Leave? First of all, if you want to, you can do up to 10 days' keeping in touch work during your maternity leave without losing any Statutory Maternity Pay and for your usual wage. You should agree payment with your employer for the time worked. At the end of OML, you have the right to return to your original job. However, if your employer does not let you return to the same job, this is effectively a dismissal, and will be considered to be automatically unfair. You may then be entitled to make a complaint to an employment tribunal for unfair dismissal and sex discrimination; because, of course, men cant have babies (can you imagine??? Honestly, you thought man flu was bad?) So the situation wouldnt arise. At the end of AML your employer must again take you back, though not necessarily carrying out the same duties. You are entitled to be given a suitable alternative position with the same pay and conditions however and if your employer tries to give you something completely unsuitable and sacks you when you refuse it, again you may be able to make a claim to an employment tribunal for unfair dismissal and/or sex discrimination If a redundancy situation arises while youre on leave, you must be offered a suitable alternative position if one is available. If your employer cannot offer suitable alternative work, you may be entitled to redundancy pay dependant on length of service and in line with the usual rules regarding redundancy. What do I get paid whilst Im on Maternity Leave? You have to have worked for your employer for at least 26 weeks at the beginning of the 15th week before your baby is due, to qualify for Statutory Maternity Pay (SMP). To get SMP you must have also have been paid weekly earnings at least equal to the lower earnings limit for National Insurance contributions, which in broad terms is an average of at least 95 a week. You are still entitled to be paid SMP even if you dont have any intention of returning to work after having your baby. Your employer, as a minimum, must pay you SMP and you are entitled to this for up to 39 weeks'. Again if you are lucky, your contract of employment may entitle you to more than this. For example, some employers will pay employees full wages during OML which includes SMP. Or you may get more than the statutory 39 weeks. Speak to your HR people or check your contract to see what you are entitled to. If you dont qualify for SMP, (say for example you have only worked for your employer for four months when you find you are expecting) you could be entitled to Maternity Allowance (MA). The Department for Work and Pensions (DWP) are responsible for paying this and you will qualify for MA if you usually get paid an average of 30 per week or more. You must also have worked for at least 26 weeks out of the 66 weeks before the week your baby is due, (although not necessarily for the same employer during this time) and those 26 weeks do not need to have been worked consecutively. You can also get MA if you are self-employed. How much will I be paid? If you qualify for SMP, then for the first six weeks of your OML you are entitled to 90% of your usual weekly pay before tax and national insurance is deducted. After that and up to the 39 week cut off point you will be paid 90% of your gross weekly pay or 123.06 per week, whichever is the lesser amount. If you're getting Maternity Allowance, you will get either 123.06 a week or 90% of your average weekly earnings, whichever is lower. This will be paid for 39 weeks. What if my employer refuses to pay me during maternity leave? If your employer wont pay you or doesnt pay you the right amount you can demand they provide you with a letter setting out: Their reason for not paying you, or How they have worked out the amount they are paying you What weeks they are paying you for. If you are unhappy with their reasoning, you can ask an officer at your local Revenue and Customs office to look into your complaint. HM Revenue and Customs can impose a fine on an employer of up to 3,000 if they keep failing to pay you SMP. What If Im treated unfairly because of my pregnancy? You are entitled not to be treated less favourably due to your pregnancy, or because youve just had a baby. For example, you should not have the terms and conditions of you job changed from those you had before you became pregnant. You should not be deliberately passed over for promotion. You should certainly not be harassed or made to feel like a spare part at work or a nuisance because you are unwell during the first part of your pregnancy. If you think you are being treated unfairly because you are pregnant or because of your maternity leave, you can make a claim to an employment tribunal for sex discrimination. You should go through your employers grievance procedure and raise a written grievance first. What if Im dismissed because of my pregnancy or maternity leave? If you have told your employer that you are pregnant (and it helps your case if youve given them a certificate from your GP or midwife as proof) and your employer dismisses you because of this, or because you have taken maternity leave or have just had your baby, you can make a claim to an employment tribunal for unfair dismissal and sex discrimination. In these circumstances, your length of service doesnt matter. If you feel that you have been unfairly dismissed, discriminated against because of your pregnancy or that your rights have been infringed seek legal adviceimmediately. About the Author:
Mike Massen is a practising solicitor with Gartons Solicitors Leeds - 0113 2310766,
mmassen@gartonsolicitors.co.uk www.gartonsolicitors.co.uk
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