ACS

Maternity etc. Rights

It is most important that no employee is dismissed on pregnancy, maternity , paternity or adoption related grounds as the consequences could be most serious for the Employer in terms of compensation. Note the Employer’s Policy contained in the relevant P.B.S Manual and in the standard P.B.S Staff Handbook.

Maternity

All pregnant employees have a right to 26 weeks ordinary maternity leave and those with 26 weeks continuous service by the beginning of the 14th week before the expected week of childbirth can claim a further 26 weeks additional maternity leave. During both the ordinary maternity leave and additional maternity leave the employee’s terms and conditions of employment (with the exception of pay) will be maintained as though she had not been absent.

The employee can start ordinary maternity leave up to 11 weeks before the baby is due. She must take a minimum leave of 2 weeks from the date of birth and it would be a criminal offence for the employer to allow her to return to work during that period.

The right to maternity leave is dependant upon the employee informing the employer by the end of the 15th week before the expected week of childbirth, of the date on which the maternity leave period is to commence and the expected week of childbirth (evidenced by means of a medical certificate if requested by the employer.)

Within 28 days of the notification by the employee, the employer must write to her setting out her return date.

Special provisions can apply where, for example, there is a premature birth.

If the employee intends to return to work at the end of the additional maternity leave she is automatically entitled to do so but if she wants to return earlier then she must give at least 8 weeks notice of the date she intends to return.

The pregnant employee may be entitled to Statutory Maternity Pay, Maternity Allowance, ‘adequate allowance’ or other benefits. (Advice can be obtained from the Employers’ Helpline – 08457 143143.) Basically, most women who have been in the same job throughout their pregnancy and whose earnings average a minimum weekly sum to attract National Insurance Contributions are entitled to S.M.P for 39 weeks payable by the Employer on behalf of the State. They get this even if they have no intention of returning to work.

S.M.P for the first 6 weeks of leave will be at 90% of average weekly pay and for the remainder of the statutory maternity leave period at a weekly sum specified by the Government (or 90% of average weekly pay if this is less). Any additional maternity leave is unpaid.

Some or all of the payments can be recovered. An employer paying N.I. Contributions of less than £45,000 per year can claim back 100% + 4.5% compensation. If paying more than that sum, 92% is recoverable. The amount to be recovered can be deducted from NICs and PAYE.

Where the employer and employee agree the employee can work up to 10 days during the statutory maternity leave period without affecting her entitlement. These “keeping in touch days” may include training or any other activity related to the employee’s work. Any work done on a particular day constitutes a day’s work. The employee can be paid an amount agreed with the employer for the days involved.

Reasonable contact between employer and employee during a maternity leave period (e.g. to discuss return to work) is permitted.

The employee is entitled to return from leave to her old job but if she returns during or at the end of Additional Maternity Leave and the employer can show that that it is not reasonably practical for her to have her old job (e.g. because the job no longer exists) then she must be offered a job that is;

• both suitable and appropriate for her to do and
• on terms and conditions that are no less favourable than those for her original job.

If the employee is offered a job that meets these criteria and she unreasonably refuses it then she has effectively resigned.

At the end of Statutory Maternity Leave the employee may be able to take Parental Leave (unpaid) if she needs more time off. She can take up to four weeks without affecting her right to return to her old job. (see Unpaid Leave)

Any female employee, regardless of length of employment or hours of work is entitled to time off for antenatal care provided that an appointment to receive antenatal care has been made on the advice of a doctor, midwife or health visitor.

After making her first appointment the employee must produce a medical certificate stating that she is pregnant and an appointment card confirming the date of the appointment.

The employer can refuse paid time off for antenatal care where reasonable grounds exist for doing so (e.g. where the appointment could fairly be made outside normal working hours).

As part of the employer’s risk assessment under Health and Safety Regulations the pregnant employee must be given special attention. Such requirements as a rest room and flexible working need to be considered as well as an overall assessment of the risks posed to new or expectant mothers. It is established law that failing to comply with these provisions may amount to sex discrimination.

The Employment Appeals Tribunal has commented that “an employer should not wait until an employee is pregnant before making an assessment of the risks by reason of her condition to a new and expectant mother. An employer should have such an assessment in place for each undertaking where the person’s workers include women of child bearing age.”

Adoptive Parents

An adoptive parent’s statutory rights to adoptive leave and pay, together with the relevant procedural and administrative frameworks, are broadly in line with those introduced for maternity leave and pay.

An adoptive parent who is matched with a child up to the age of 18 years by an approved Adoption Agency can claim ordinary adoption leave of up to 26 weeks.

The employee must notify the Employer at least 28 days before the leave is to commence and if required by the Employer, provide documentary evidence from an approved Adoption Agency supporting entitlement to the leave including the date of the match.

An adoptive parent has a right to additional adoption leave of up to a further 26 weeks, subject to certain date related criteria.

Where a married couple adopts only one spouse is entitled to claim adoption leave. The other can claim statutory paternity leave if meeting the qualifying requirements.

Adoption leave is only available where the child involved is newly placed. The right is not available in step family adoptions or adoptions by existing foster carers.

Paternity leave

Paid statutory paternity leave of up to 2 weeks is available if taken within 56 days of the child’s date of birth or, if adopted, the date placed for adoption. The payment is the lesser of the weekly amount specified by the Government or 90% of the employee’s average weekly earnings. Administered by employers in the same way as statutory maternity pay they can recover most, if not all, of the payments they make from the State.

The right can be claimed by an employee who:

a. has at least 26 weeks qualifying service with the same employer by the 15th week before the child is expected to be born or, if adopted, the week within which the approved match was made..
b. has a weekly earnings above the lower earning limit for NICs.
c. has a specified relationship with the newborn child or child newly placed for adoption and
d. has a specified relationship with the mother or adoptive parent of that child

The procedure starts with the employee giving appropriate notification to the employer and providing self-certification of entitlement, if requested to do so.

There is a right to return to the same job after the leave and protection from detrimental treatment or unfair dismissal in connection with paternity leave.

Additional Paternity Leave is intended to be introduced by the Government before the end of this Parliament. It could give fathers up to a further 26 weeks leave (some of it perhaps paid) if the mother has returned to work.

Paternity leave is an addition to the existing parental leave, which is unpaid (see the Information Sheet – Unpaid Leave )

.

 

 

 

 

 

 

 

All PBS information sheets are designed to provide the detail you need to implement best business and employment practices. They are not a detailed commentary on the current law and where advice is needed in a specific case you should contact PBS for expert consultation.

 

Maternity etc. rights