MATERNITY LAW – THE MOTHER OF ALL CHANGES

Business owners and employees alike should be prepared for what to expect when expecting in the workplace as redundancy and maternity laws are changing.

Regardless of whether an employee has worked for one day or over a decade, every expectant employee is entitled to paid time off for ante-natal appointments . In addition, antenatal care is not restricted to medical examinations and can include relaxation classes and parent craft classes, provided that these are recommended by a registered medical practitioner, registered midwife or registered health visitor, although this would not extend to educational classes, only for medical reasons. With the exception of the first appointment, if requested employees must produce a certificate confirming pregnancy (known as MAT B1) and an appointment card or similar showing an appointment has been made.

Employees, regardless of how long they have worked for the company are entitled to 52 weeks’ maternity leave: Ordinary leave, which is the first 26 weeks of leave, can begin any time up to the birth of the baby, but no earlier than the 11th week before the expected week of childbirth. If an employee is absent in the four weeks before the expected week of childbirth for a pregnancy related reasons this will trigger the beginning of maternity leave regardless of when she notified her employer of the start of maternity. All staff must take must take two weeks compulsory leave immediately after birth (or 4 weeks if they are factory workers)

Employees do not have to notify their employer of their pregnancy until the 15th week before the expected week of childbirth but they will not benefit from rights such as time off for appointments or other protections until her employer is on notice of the pregnancy. By week 15, the employee must tell their employer when the expected week of childbirth is and if possible, when they plan to begin their leave, although this can be changed up to 28 days’ notice.

Every employer is under a duty to make a suitable and sufficient assessment of any health and safety risks to which employees are exposed while at work and this assessment must include risks to woman of child bearing age. It is good practice to revisit any risk assessments or reassess if an employee becomes pregnant.

Once an employee has notified their employer of their pregnancy and intended start date for maternity leave, an employer has 28 days to inform the employee of their maternity leave rights, their entitlement to maternity pay and when their maternity leave will end. An employee who wants to return to work early from maternity leave may notify their employer with at least 8 weeks’ notice.

Employees who take ordinary maternity leave (26 weeks) have a right to return to ‘the same job in which she was employed before her absence.’ Employees who take additional maternity leave (the full 52 weeks) have the right to return to same position but if this is not reasonably practicable, they may be given another suitable and appropriate job on the same terms.

Now for the new law….

Currently, if during the employee’s maternity leave, a redundancy situation arises, the employee is entitled to be offered a suitable alternative role if available and she is given priority for that role over other employees – a rare example of positive discrimination. Under the new Act (Protection from Redundancy (Pregnancy and Family Leave) Act 2023) this will be extended to woman to include not only maternity leave but from the point an employee notifies her employer that she is pregnant through to 6 months after she has returned to work. The new law received royal assent on 24 May 2023 but no firm date has been set for implementation of the necessary regulations to put it into action yet.

Employers are under a duty of care to their employees when it comes to health and safety and special duties apply for new and expectant mothers. For example, employers must consider certain conditions that are usually deemed safe, may not be for someone who is pregnant, these may include:

• Lifting and carrying heavy loads;
• Standing or sitting for long periods;
• Exposure to diseases;
• Work- related stress;
• Work station and posture; or
• Excessive noise

Therefore employers must assess the health and safety risks, consider additional rest breaks, and monitor and review the risk assessment frequently. If an employer is unable to remove risks then they must make sure that the expectant mother is not exposed to this risk by offering a suitable alternative to work if available. If there is no suitable work then the employer must place the employee on “maternity suspension” and pay their normal wage throughout. The only exception to this being in cases where suitable work has been offered but unreasonably refused.

In ordinary circumstances, returning to work during maternity leave will end an employee’s entitlement to leave. However, with an employer’s agreement, an employee can have up to 10 ‘keep in touch days’ without breaking their maternity leave.

Statutory maternity pay is paid for up to 39 weeks and to qualify the employee must have been employed by the same employer for at least 26 weeks (up to and including the 15th week before their expected birth) and their average weekly earnings (in the weeks running up to and including the 15th week before their expected birth) must be equal to the lower earnings limit. It is important to note that employees are entitled to statutory maternity pay regardless of if they plan on returning to work, and it is payable for the whole maternity period. They are still entitled to the pay even if they are fired or dismissed (provided that their employment ended after the 15th week before their expected birth). The rates for statutory maternity pay are 90% of an employee’s average weekly earnings for the first six weeks. Thereafter, they are entitled to either £172.48 or 90% of their average weekly earnings dependant on which is lower.