The Law offers protection to female employees who are pregnant.
Any dismissal connected with “pregnancy” is automatically classed as an unfair dismissal. This means that the qualifying period of 1 year does not apply.
A pregnant employee is entitled to Maternity Leave. To exercise her right, she must notify her employer, in or before the 15th week before the expected week of birth, of the fact of her pregnancy, her expected week of confinement and the date on which she intends to start her maternity leave.
The employee is entitled to 26 weeks’ ‘ordinary’ maternity leave (OML). Employees with 26 weeks’ continuous service by the 15th week before the expected week of birth are also entitled to a period of ‘additional’ maternity leave (AML). This starts at the end of the ordinary maternity leave period and last for 26 weeks after the birth.
The employee can chose when the maternity leave starts, provided it is no sooner than the beginning of the 11th week before the expected week of birth.
To qualify for Statutory Maternity Pay during maternity leave, the employee must have worked for the employer for at least 26 weeks and she must have earned more than the current lower level set for National Insurance Contributions. If an employee qualifies for Statutory Maternity pay then for the first six weeks of such leave the employee is entitled to 90% of her normal weekly pay. For the remaining 33 weeks, the employee is entitled to a minimum of £128.73 per week for the rest of the Maternity Leave.
Under certain circumstances an employer is entitled to suspend an employee who is pregnant or who has recently given birth for Health and Safety reasons or the employee works on a night shift. The Law requires the employer to consider alternative work within the work place prior to suspension. The employee is entitled to ful pay during suspension unless they have unreasonably refusied an offer of suitable alternative work. If medically advised, an employee is entitled to paid time off work to attend antenatal classes.
Women are also protected from any unfair treatment at work because of their pregnancy or childbirth, or their wish to take maternity leave.
The employee has the right to return to work after the 26 weeks of ordinary maternity leave or, if she prefers (and qualifies for the right), at the end of the additional 26 weeks maternity leave. If she wishes to return before ordinary or additional maternity leave has expired, she must inform the employer in writing that she intends to return to work. She must give the employer 28 days notice.
During ordinary maternity leave the employer can write to the employee 21 days before the end of the leave to confirm the child’s date of birth and ask whether the employee intends to return to work after the additional maternity leave. The letter must explain how to work out when the additional maternity leave will end and what will happen if she does not respond to the letter within the required time period. The employee must reply to the employer’s enquiry letter within 21 days of receipt or her employer can take disciplinary action against her.
No notice needs to be given by an employee intending to return to work at the end of ordinary maternity leave.
An employer is only entitled to suspend an employee who is either pregnant, has recently given birth or is breastfeeding in the following circumstances:
- The employee normally works on a night shift
- A Health and Safety reason, for example the employee’s job involves working with chemicals
It is important to note that the employer cannot dismiss the employee, as this would be connected with her pregnancy and so automatically unfair. Before the employee is suspended the employer must consider alternative work for the employee. If there is alternative work available but it is not offered to the employee she is entitled to complain to the Employment Tribunal.
As well as ordinary and additional maternity leave, the Law also provides for compulsory maternity leave of 2 weeks (4 weeks for factory workers) for all employed mothers. An employer who allows a woman to work during a compulsory maternity leave period commits a criminal offence. Compulsory maternity leave is normally subsumed into ordinary maternity leave so, for practical purposes, can normally be disregarded.
There are provisions requiring employees to give formal notices to employers and requiring employers to give formal notices to employees, all within specified time limits, in order to ensure proper operation of statutory maternity leave rights and of rights to return to work at the end of maternity leave.