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Maternity / Paternity and Family Friendly Working

Our dedicated team of employment law solicitors is always on hand to provide legal advice on rights such as maternity, paternity, adoption, parental leave, and other family friendly working patterns.

We can help you to resolve disputes with your employer through discussion where possible, or we can take legal action against your employer to enforce your rights. If you are discriminated against or victimised for exercising your rights, we will fight your corner.

This complex area of law has changed rapidly in recent years and continues to move with the times. Our solicitors have an in-depth understanding of the law and how it applies to your individual circumstances.

Maternity Rights

By law, pregnant women are entitled to a number of statutory rights as employees and we can advise you on a range of maternity issues including:

  • Facing redundancy during or after maternity leave
  • Remuneration including your bonus and benefits during maternity leave
  • Taking time off work for ante-natal care
  • ‘Keeping in touch’ days
  • Claiming discrimination and unfair dismissal if you are dismissed because of pregnancy or maternity leave
  • Maternity pay
  • Your rights on returning to work after having a baby

Paternity Rights

If your partner is having a baby, you may be entitled to one or two weeks of paid paternity leave.

The law is changing in 2015 to allow fathers, mothers and adopters to share their parental leave between them.

How we can help

We will always work hard to protect your parental rights and ensure that these rights are fully protected. Our solicitors can assess if your employer is acting lawfully and we can brief you on how best to negotiate a solution yourself or help you bring a grievance. If you would prefer us to take the lead, we are highly skilled at negotiating directly with employers to reach a settlement.

If discussions break down, we have all the expertise you need to bring an Employment Tribunal claim and we can represent you throughout this daunting and difficult process. At Hodge Jones & Allen Solicitors, we have a proud record of going to extraordinary lengths to win these cases and secure the justice you deserve.

Pregnancy and Maternity Leave - Frequently Asked Questions

When should I disclose to my employer that I am pregnant?

For maternity leave purposes, you are not required to inform your employer of your pregnancy until the 15th week before your expected week of childbirth. You may wish to inform them earlier so you can benefit from time off for your antenatal care, including appointments and classes recommended by a doctor or midwife. You’re entitled to all of this but your employer can ask for proof of appointments.

Once your employer has received notice of the date that you have chosen to start your maternity leave, they have 28 days to notify you of the date on which your maternity leave will end.

You are entitled to change your mind about when you start your leave but you must inform your employer.

What if my employer reacts badly to my pregnancy?

Even if your manager is openly concerned about how your maternity leave will affect the business, you have a right to a career and a family.

If you feel you are being treated less favourably due to your pregnancy, childbirth or maternity leave (for example you are not considered for a promotion when you should have been) this may be considered discriminatory treatment under s.18 of the Equality Act 2010.

If you are dismissed because you are pregnant or have taken maternity leave you can make a claim for automatic unfair dismissal and pregnancy/maternity discrimination. There is no qualifying period for these claims and you are protected from the first day of your employment. This doesn’t mean that you can’t be dismissed during your pregnancy or maternity leave but your employer would be required to show that the reasons for your dismissal were fair and the process by which they came to that decision was properly executed and within a band of reasonable responses.

What if my employer begins redundancy procedures before or during my maternity leave?

If a redundancy situation arises during your maternity leave and “it is not practicable by reason of redundancy” for the employer to continue to employ you under your existing contract, you are entitled to be offered a suitable alternative vacancy (where one is available) to start immediately after your existing contract ends (regulation 10 of Maternity and Parental Leave Regulations 1999). This gives you priority-status over other employees. If your employer does not comply with this requirement, you may have a claim for automatically unfair dismissal under section 99 of the Employment Rights Act 1996.

What maternity pay am I entitled to?

Employees are entitled to up to a year of Statutory Maternity Leave – regardless of length of service.

Statutory Maternity Pay is payable for up to 39 weeks of your maternity leave, subject to a number of eligibility criteria and rules. There is a length of service requirement – employees have to have been continuously employed for at least 26 weeks at the end of the Qualifying Week (the 15th week before your expected week of childbirth) and are still employed by the company during that week.
The statutory payment is based on your average earnings during an eight-week reference period ending with the Qualifying Week.

You’ll receive 90% of your average weekly earnings (before tax) for the first six weeks and £148.68 (currently) or 90% of your average weekly earnings (whichever is lower) for the next 33 weeks.
The earliest your paid maternity leave can start is the 11th week before your baby is due. If your baby is born early, your leave starts the day after the birth. You don’t have to take the 52 weeks leave you’re entitled to and if your do, you’ll only get maternity pay for 39 of them (if you’re eligible). You must take at least two weeks off work following the birth of your baby.

Many employers provide a contractual right to maternity pay that exceeds SMP. You should check your employment contract (or with your employer’s HR Department) to find out about any enhanced maternity pay or leave entitlements that you may have.

Check for top-up payments of SMP due to pay-rises!

What if I want to share my leave with my partner?

The system of shared parental leave was introduced on 5 April 2015 and it allows parents to share the statutory maternity leave and pay that used to be available only to mothers.

There are quite complicated eligibility requirements. In order to check eligibility, employees can use the Shared Parental Leave and Pay Calculator available at the link below:

https://www.gov.uk/pay-leave-for-parents

Parents can decide to be off work at the same time and/or take it in turns to have periods of leave to look after the child.

Shared Parental Leave should not be confused with Parental Leave, which is the entitlement to 18 weeks unpaid leave (maximum of 4 weeks per year).

My employer has asked me to work during my maternity leave?

Since 1 April 2007, women on maternity leave have been able to work during their maternity leave for up to ten days without losing their entitlement to Statutory Maternity Pay – these days are called ‘keeping in touch days’ (KIT Days). Payment for KIT Days is not dealt with under the legislation and is instead a matter for agreement between you and your employer. Usual practice is that you would receive your normal contractual rate of basic pay, although some employers operate a system of paid time off in lieu instead. Your employer should clarify this point if you request or are invited to work on a KIT Day.

Employers cannot legitimately compel an employee to come in, regardless of the terms on offer.

Will my contractual benefits and holiday pay stay the same?

You have a statutory right “to the benefit of all of the terms and conditions of employment which would have applied had you not been absent”, this could include health insurance/ gym memberships etc. as stated in your contract. This is with the exception of the terms and conditions about “remuneration” (remember, your contractual salary is replaced with maternity pay while you are on leave).

Like other non-cash benefits, annual leave entitlement continues to accrue during maternity leave. You also have a right to carry over unused holiday entitlement to the next holiday year if it cannot otherwise be taken because of maternity leave.

Should I be getting my bonus whilst I’m on maternity leave?

Where an employee’s contract has a bonus clause (including discretionary bonuses), the law infers a ‘maternity equality clause’ into the terms. This means that bonuses should be paid to employees who have taken statutory maternity leave during the bonus year. However, the bonus is only required to account for any part of the relevant bonus year:

  • during which the employee was at work before going on maternity leave;
  • during which the employee is absent for the two weeks’ compulsory maternity leave; and/or
  • during which the employee was at work after her return from statutory maternity leave.

Where the bonus is discretionary, an employer is bound by the duty – in relation to employees on maternity leave just as in relation to employees who are not – not to exercise such discretion ‘perversely’. Therefore, the contribution made by an employee on maternity leave for the period when she was at work should be properly considered in the calculation of bonuses.

Will my employer’s pension contributions stay the same?

Broadly speaking, an employer must continue to make pension contributions during ordinary maternity leave and any period of paid additional maternity leave as if the employee had been working normally and earning full salary. However, any employee contributions will be based on maternity pay, not full salary.

I’ve returned to work - am I entitled to flexible working?

You’re entitled to request flexible working for any reason – not just due to being a parent or having someone else to look after. To be eligible though, you must:

  • have been employed by your employer for at least 26 weeks, and
  • only have made one request in the last 12-month period (whether it was granted or refused).

Flexible working is not a right but on your request your employer must consider flexible working as an option for you and can only refuse on eligibility grounds or for one or more prescribed statutory reasons;

  • The burden of additional costs;
  • Detrimental effect on ability to meet customer demand;
  • Inability to reorganise work among existing staff;
  • Inability to recruit additional staff;
  • Detrimental impact on quality;
  • Detrimental impact on performance;
  • Insufficiency of work during the periods the employee proposes to work;
  • Planned structural changes.

I want to take more maternity leave than my employment contract allows for

It is possible for you and your employer to agree to a further period of time off work after the end of statutory maternity leave. Such a right may be given in the employment contract or agreed on an ad hoc basis. You also have the option to delay returning to work by taking any accrued holiday leave.

After one year’s employment you or your partner is entitled to 18 weeks’ unpaid parental leave per child. You’re entitled to take this anytime between the child’s birth and their 18th birthday. However, under the statutory scheme, no more than four weeks’ leave can be taken in any one year unless your child has a disability.

If you have any questions or concerns about your maternity rights at work – Hodge Jones & Allen’s specialist employment team can help. Should you like to book an appointment with one of our lawyers please contact 0800 437 0322 or complete the contact form.

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