There are many misconceptions about how to effectively manage pregnancy and maternity leave in the workplace. What is or isn’t acceptable behaviour? What are the employer’s responsibilities, and in turn, what duty do expectant parents have towards their place of work? Tina Chander, Head of Employment Law at Midlands law firm Wright Hassall, looks at the matter from a legal perspective.

 

Working mothers make up a growing share of the UK’s workforce. Just last year research undertaken on behalf of Resolution Foundation and the Centre for Economic Performance at the London School of Economics (LSE) indicated that 74% of mothers of 0–3-year-olds were in employment in 2021, representing a steady rise of 6% since 2019.

The UK has averaged approximately 11,400 new births every year since 2018, so it is becoming ever-more important that businesses manage the challenges that both pregnancy and new parenthood have on their day-to-day operations. But what does that mean in real terms, and what do employers need to know to ensure they remain on the right side of inclusivity and discrimination laws?

How does the law protect pregnant women?

There are three main rights that all pregnant employees legally have. These are the right to be paid time off for antenatal care, maternity leave, pay or allowance, and the protection against discrimination or unfair treatment.

It is unlawful to show prejudice to a woman in the workplace because of her pregnancy, any resulting illness, or any time off they may take either through illness or maternity leave. If there is any doubt that an individual has been dismissed, demoted, had their pay or contractual terms altered, been coerced into working on maternity leave without a formal agreement, or had their return to work hindered by their decision to breastfeed, then there could be grounds for a tribunal.

This legal guidance is relevant from the point the person becomes pregnant until either their maternity leave ends, they return to work, or they choose to leave their job.

Fair treatment

An individual’s decision to start or grow their family is never an excuse for marginalising them at work. This goes for both existing employees and during the recruitment process.

For example, it is illegal to ask whether a woman is pregnant, has children, or plans to have children, at any point during recruitment. Even alluding to any of these questions would find the employer in breach of the sex discrimination laws outlined in the Equality Act 2010.

Despite the law being quite straightforward with this, the Equality and Human Rights Commission (EHRC) reports that 59% of employers still believe women should disclose their pregnancy when applying for a job. This couldn’t be further from the truth. Even if the applicant chooses to disclose their pregnancy, employers would be ill-advised to allow this to influence their decision-making.

Women have no obligation to inform an employer that they are expecting until 15 weeks before the anticipated week of birth. So, if an offer of employment is withdrawn upon learning of an employee’s pregnancy, then this would also be unlawful and would leave employers at risk of discrimination and automatic unfair dismissal claims.

When it comes to existing employees, bosses need to ensure that they are offered the same opportunities to further their career as would be afforded to anyone else.

Regardless of whether they are pregnant or on maternity leave, a person should be made aware of all potential job vacancies and be given a fair chance to apply for any promotions. Employers should never purely reject applications on the basis that an employee is pregnant or on maternity leave, as this directly violates sex discrimination laws.

On the flip side, pregnant women and new parents must also be treated equally during redundancy or termination. Employers cannot dismiss an employee for any reason connected to pregnancy. Doing so will amount to discrimination and automatic unfair dismissal. If an employer does terminate an employee’s employment whilst she is pregnant/on maternity leave they should provide written reasons for the termination under the Employment Rights Act.

Failure to provide ample proof of a fair assessment puts an employer at a heightened risk of legal action. In redundancy situations, it’s pertinent to utilise a previous performance review from before the pregnancy within consultations or as scoring evidence, as the symptoms of pregnancy can impair an individual in several ways, all of which are temporary. Employers should remain conscious of this before taking disciplinary or corrective action should a pregnant worker achieve poor results.

What is the employer’s duty of care?

All employers have a duty to protect the welfare of their staff in the workplace, irrespective of their gender or personal status. However, when pregnancy occurs, an individual can suffer a host of additional stresses on their physical and mental wellbeing that could impact their ability.

Once a pregnancy is reported, employers should be diligent in conducting bespoke risk assessments and consider altering working conditions to avoid any significant risk to the health and safety of new/expectant mothers in the workplace. Risks could include heavy lifting or carrying, long working hours, standing or sitting for long periods without adequate breaks, or driving for long distances.

Wherever such issues are evident, reasonable steps will need to be taken to remove them. This could be as simple as changing someone’s working hours, offering additional, more frequent breaks, or allowing home working, but it might mean offering them suitable alternative work for the length of their pregnancy.

Employers can’t legally alter a pregnant employee’s contractual terms and conditions without prior agreement, so even if the job role has to change during pregnancy for health and safety reasons, it should be noted that pay, benefits and leave cannot and should remain as it was. If the risks cannot be resolved, an employee should be suspended on full pay for pregnancy or maternity reasons until a viable solution can be found.

Any pregnant employee who believes that they are at risk but their employer doesn’t adequately acknowledge the threat to their health should speak to their health and safety or trade union representative, or obtain formal advice from a doctor or the Health and Safety Executive.

Time off work

It’s always best to try to be understanding towards an employee who’s experiencing physical or mental health complications when pregnant. There are several common ailments to be aware of, such as morning sickness, tiredness, headache, backache, dizziness, difficulty breathing, or bleeding.

As an employer, if you’re unsure whether an illness is pregnancy-related, you can request a ‘fit note’ from their doctor. Pregnant employees are entitled to paid time off to attend antenatal appointments; refusal to allow time off will amount to detriment under the Employment Rights Act 1996 and may constitute discrimination. ‘Antenatal care’ does not just refer to medical appointments – it could also include antenatal or parenting classes.

What maternity or shared leave are employees entitled to?

All employees, irrespective of their length of service, are entitled to 52 weeks of maternity leave. However, they will have had to work for their employer for at least 26 weeks before the 15-week qualifying period before the anticipated birth date to be eligible for Statutory Maternity Pay (SMP). SMP is the minimum amount of Maternity Pay that an employee can claim, but many companies offer bespoke maternity packages as an employee perk. Should an employee be ineligible for SMP, they may well still qualify for Maternity Allowance, which is a payment from the Government.

Maternity leave and SMP will be automatically triggered if a pregnancy-related illness causes an employee to be off work for the four weeks before the baby is due, regardless of what may have been previously decided. Likewise, if the baby arrives early, maternity leave and pay will routinely start on the day after the birth, not on the date agreed.

Of course, employees do not have to take their full maternity leave.

However, even if they choose not to, they are still required to take a minimum of two weeks off work after the baby is born, or four weeks if they work in a factory or manual setting. As an employer, it’s important that you at no point discourage the employee concerned from taking all their entire leave.

The expectant mother is required to provide an employer with a date they expect to start their leave and must give 28 days’ notice if they want to change this date. However, employers should be mindful that babies very rarely arrive to schedule, and will need to remain flexible wherever possible.

Expectant fathers or partners are also eligible for paid statutory paternity leave of between one to two weeks. Equally, they may also opt for shared parental leave (SPL) or Statutory Shared Parental Pay (ShPP) along with the mother, meaning they can share up to 50 weeks of leave and 37 weeks of pay between them.

SPL and ShPP can be taken in blocks separated by periods of work or taken all in one go. Parents can also choose to be off work together or to stagger the leave and pay. However, there are minimum service length and income restrictions involved. This can be checked through the YouGov website.

Pregnant employees and their partners retain their leave and pay rights if the baby is stillborn after the 24th week of pregnancy or dies soon after birth. In these cases, employees should aim to be as understanding and supportive as possible, offering additional time off or a phased return to work if able.

Navigating the return to work

Once maternity leave has ended, an employee’s right to return to the same job they left very much depends on how much leave they took.

Those taking up to 26 weeks of maternity leave can legally expect to return to the same role on the same terms and conditions. However, if they chose to take more than 26 weeks’ maternity leave, the situation is slightly different. After the second 26 weeks of maternity leave, an employee has the right to return to her old job on the same terms and conditions, unless it is “not reasonably practicable”. This right applies even if someone’s maternity cover has arguably done that job better whilst they’ve been off!

Employees will have the right to return to their job unless the employer has a legitimate reason to offer them an alternative. If this is the case, the new role must be appropriate and on the same contractual terms. From the employee’s perspective, they may wish to change some contractual details, such as working hours or days to cover childcare needs. As long as they have at least 26 weeks of service, they are entitled to put in a flexible working request.

Employers must look at all flexible working requests fairly, following the Acas Code of Practice, and make a final decision on the matter within a maximum of three months.

Once back in the workplace, employees are legally allowed a reasonable amount of time off to look after a dependant, such as a child or partner. What’s ‘reasonable’ depends on the situation and circumstances involved. Often this might be a simple childhood illness that prevents them from being cared for elsewhere. This time off will often be without pay unless the contract of employment states otherwise.

Another important legal matter, and one which is often overlooked, is the employee’s right to have time and somewhere to express or rest if they are breastfeeding. In these circumstances, it’s a good idea to allocate a private room and fridge space to store the milk. Colleagues should be reminded that these additional breaks are not an extra perk of employment, but a human rights matter. Any discrimination or harassment towards the feeding mother will not be tolerated.

The point of no return

If for whatever reason, an employee decides not to return to work after maternity leave, they must follow the business’ standard process for resigning, including giving relevant notice. This should not affect their maternity pay, and they will still have a right to any annual leave accrued. However, if the employee is dissatisfied about how their return has been managed, or they feel like they are being engineered out of their role for illegitimate reasons, they might seek to raise a formal complaint (‘grievance’).

New parenthood is often a time of immense change, stress and big emotions, so remaining tactful and following strict protocol is always advisable to avoid getting to the point of a complaint being made. For an employer, knowing how to support an employee going through such a seismic change to their life whilst also protecting their productivity can be a juggling act, but the results are often a more rich and diverse workforce.

With the rise of flexible working, and mothers now making up an even greater share of the employment landscape, remaining inclusive will be key to ensure you attract and retain the talent that working mothers have to offer.