December 2017 bulletin

Welcome

Season’s greetings and every good wish for the New Year to all readers of my bulletins. In this month’s edition of our employment law bulletin, we focus on maternity leave. What follows is a brief guide to some of the main points to take into account before, during, and after an employee’s maternity leave.

The lead-up to maternity leave

When an employee tells you that she is pregnant, she becomes entitled to the right not to be subjected to a detriment (which means being treated less favourably than anyone else in the workforce) for a reason connected to her pregnancy or maternity.

A pregnant employee has the right to take up to 52 weeks off work.

A small part of that is obligatory; a woman who has just given birth must not work for at least two weeks (or four weeks if theirs is a factory job). That is known as Compulsory Maternity Leave (CML), and it applies from the day on which the child is born. It is a criminal offence for an employer to allow the employee to work during the CML period.

Ordinary Maternity Leave (OML)
This is a period of 26 weeks, which all employees who give birth are entitled to take irrespective of how long they have worked for you.

It is subject to notification rules. The key date is the end of the 15th week before the week in which the baby is expected to be born. That 15th week is known as the Qualifying Week. The employee must, by the Qualifying Week (or if that’s not reasonably practicable, then as soon as it is reasonably practicable), tell you:

That she is pregnant;
The Expected Week of Childbirth (known as the EWC); and
The date on which she intends her OML to start. That date cannot be earlier than the beginning of the 11th week before the week in which the baby is expected to be born. That start date can be changed by the employee, usually on 28 days’ notice.Once you have received the employee’s notification of the date on which she wants her maternity leave to begin, you must write back to her within 28 days confirming her return-to-work date.

Additional Maternity Leave (AML)
An employee may also take AML (a period of up to another 26 weeks) straight after her OML. As with OML, the employee doesn’t have to have worked for you for a minimum amount of time before being entitled to this.

A brief mention of Shared Parental Leave (SPL)
Parents can choose to share up to 50 weeks of the woman’s maternity leave. Each parent would usually need to give their employer eight weeks’ notice of the date on which they would like their SPL, or each period of SPL, to start (SPL can be taken all at once, or in blocks).

Once you know that the employee is pregnant and will be taking maternity leave at a particular point, not only do you have commercial and organisational matters to plan, but you have certain additional responsibilities in relation to the employee’s health and wellbeing. These can include:

assessing the risks to which she, or her baby, could be exposed at work. Typical examples are around lifting heavy objects, contact with substances, or simply long working days;
changing aspects of the working environment or the employee’s terms of work (hours, for example) that expose her to risk; and
if necessary, where risk cannot be eliminated or sufficiently reduced, looking at making greater changes to the employee’s role (making sure that the new role isn’t substantially less favourable) or, if it comes to it, suspending the employee on full pay.

It is a legal requirement that the employee be allowed to take paid time off work for antenatal appointments during her pregnancy.

Things don’t always go to plan, so it’s important to be as flexible and supportive – and ready – as possible. If the baby is born early, the employee’s maternity leave will begin on the day after the birth (therefore it’s a good idea to have contingencies in place to cover the employee’s work). Similarly, maternity leave can be triggered automatically by the employee’s pregnancy-related absence in the four weeks before the EWC. In each of those cases you would need to write to the employee within 28 days, confirming the new date on which her maternity leave would end.

Where the employee gives birth to a stillborn baby, or if the baby dies after being born, her maternity leave entitlements will still apply. Great care would need to be taken in supporting an employee in that position, including once she returned to work.

During maternity leave

An employee on maternity leave remains an employee. Her employment contract continues and, with it, the rights and obligations that have always applied to her.

However, one thing that does change during maternity leave is the entitlement to be paid at the same rate as before. Anything classed as ‘remuneration’ (which includes things like sick pay, as well as salary) is taken out of the equation when it comes to paying an employee who is on maternity leave.

Pay

Statutory Maternity Pay (SMP) is payable if the employee has worked for you for at least 26 weeks. She must also have average earnings of at least the National Insurance Lower Earnings Limit (currently £113 per week) during the eight weeks leading up to and including the Qualifying Week.

If the employee is entitled to SMP, then you must pay her a specific rate. Be sure to check these figures, as they change annually. But the basic idea is that the employee should get:

the first six weeks of her maternity leave paid at the ‘earnings-related rate’, which is 90% of her average weekly earnings; and
for the next 33 weeks of her maternity leave (SMP is only payable for 39 weeks in total), she should get the ‘prescribed rate’. The current prescribed rate is £140.98 per week, but that is set to change in April 2018. If the employee’s earnings-related rate is lower than the prescribed rate, she should get that instead.

Don’t forget to check whether or not the employee is entitled to more generous contractual maternity pay and other entitlements.

Holiday accrual

An employee’s annual leave does not stop accruing when she is off work (OML and AML), but she is not allowed to take annual leave while on maternity.

Given that employers have an obligation to allow employees to take their leave, and if the employee didn’t use up her annual holiday leave allowance before going on maternity leave, other provision must be made. The signs are that unused statutory leave may, in this situation, need to be carried over to the next leave year. You may also decide to allow the employee to carry over unused contractual leave.

Note that holiday pay isn’t payable during maternity leave because it counts as ‘remuneration’.

Company Car

An employee’s entitlement to use her company car during maternity leave depends on whether she is contractually entitled to use it for personal use or for business use (or both). If she is allowed to use it for personal use, she can keep it during her maternity leave. The same principle would apply to company equipment such as a mobile phone.

Contact with the employee

Out of sight should definitely not be out of mind. An employee on maternity leave can feel distanced from things that are happening at work. While that is to an extent inevitable, her employer must not exclude her from important things. The real danger is that the employee misses out on opportunities or is otherwise subjected to less favourable treatment connected to her being on maternity leave.

There are formal ways of maintaining contact with an employee. ‘Keeping in Touch’, or ‘KIT’ days are specific, pre-arranged days when the employee comes back into work to carry out certain tasks, or to be brought up to speed on developments (for example) during her maternity leave – once her CML is over. It is open to you and the employee to put in place up to 10 KIT days for which she will usually be paid her pre-maternity level of pay (there are SMP off-setting issues to take into account), or will be given paid time off in lieu once she has returned. Note, however, that you cannot force the employee to work KIT days if she doesn’t want to. It’s a matter for agreement between you.

Aside from having these allocated KIT days, employers don’t always feel comfortable in contacting employees during maternity leave, and there are certainly a few ground rules to follow. Those first two weeks of CML are sacred; avoid contacting the employee during that time – except to congratulate them on the baby’s birth, of course. After that point, it’s a case of reasonable contact as and when necessary.

‘Reasonable’ is the operative word; don’t bother the employee with casual enquiries. But it’s vital that the employee is included in developments that are significant, and which are relevant to her and her role – whether that’s the reorganisation of her team, consultation on strategic or contractual changes, or training and development opportunities that are made available. Failing to tell an employee about a chance to apply for promotion, for example, could be discrimination on grounds of pregnancy or maternity. It could also breach the mutual trust and confidence that is essential to the employment contract, potentially leading to a constructive dismissal. But even details of social events like the Christmas party, which the employee may choose to attend if she would like to, should be passed on.

It’s good practice to ask, before the employee goes off on maternity leave, how she’d prefer to be contacted (phone call, text, email, Skype, post).

There are two particular hotspots:

Redundancy

Don’t forget about the employee who is on maternity leave. She is as entitled as other employees to be included in the process. There are some important points to bear in mind:

If you don’t properly consult the employee on maternity leave about possible redundancy, that is probably unlawful pregnancy or maternity discrimination. That will be the case even if your intentions were good; you held back because you thought it might worry the employee or otherwise distract her from the job of looking after her baby. The onus is on you to work around this and to find the best way of involving her in the process.
If you select a woman for redundancy because of her pregnancy, maternity leave or something connected with those things, that will be unlawful discrimination and it will also be automatically unfair. Realising that you can cope without her would not be a valid reason to make her redundant. You would risk discrimination and automatically unfair dismissal claims because her absence from work (to have a baby) led to her dismissal.
A woman who is made redundant while on maternity leave should not have to apply for a suitable alternative role; she must be offered that vacancy ahead of other employees.

In a genuine redundancy situation, you need to make sure that the employee is not disadvantaged (and, in the case of suitable alternative roles, is actually given an advantage over others). If you include attendance as a selection criterion, for example, you must discount the employee’s pregnancy or maternity-related absence.

But there is a danger of over-compensating. Acas advises that, in a redundancy process, you should do no more than is reasonably necessary to ensure that the woman is not disadvantaged where it would prejudice the position of others at risk of redundancy.

Disciplinary situations

Many employers are understandably wary of instigating a disciplinary process against an employee while she is on maternity leave, whether the issue arose pre-maternity, or after her leave began.

But there is nothing wrong in principle with tackling this head-on – in the right way. When and how you should go about this are decisions to be made in each individual situation. Subject to taking action appropriately – avoid the CML period at the very least, for example, and take account of the employee’s personal circumstances – maternity leave doesn’t protect an employee from facing up to disciplinary charges.

It is important that the employee is treated fairly and is not disadvantaged in the investigation or at any stage of the process by being on maternity leave. You’ll need to be prepared to accommodate the employee, on a practical level. You cannot compel her to attend meetings, for example, and so you might have to conduct the process in writing rather than in person or ask if you can visit her at home.

It is all too easy sometimes for an employee dismissed while on maternity leave to connect the dismissal and her pregnancy/maternity. Employers must be mindful of this and of the possibility of dismissal being automatically unfair or discriminatory where the reason, or main reason for dismissal is related to the employee’s maternity leave, or to her pregnancy, or to the birth of her child. It’s essential to avoid any suggestion that that might have been the case.

Note that the employee will retain her right to be paid SMP for the entire maternity period if she is dismissed.

When the employee returns to work

There is no guarantee that an agreed return date is the date on which things will go back to pre-maternity normality.

There are various rules that apply when an employee wants to cut short, or extend, her agreed maternity leave period. If she wants to take more time off once her maternity leave ends, then that is possible with your agreement. She might, if she qualifies, take parental leave once her AML has expired. Or she might request annual leave. And she might decide not to return at all, in which case the usual termination provision in her contract would apply.

Same job?

If the employee takes no more than 26 weeks’ maternity leave, she is entitled to return to the same job, with the same/no less favourable (and perhaps even better if she would have received a payrise during her absence) terms and conditions, as she had pre-maternity leave.

However, there is recognition that when an employee takes a longer period of time out of the workplace, things may have changed. Where she takes more than 26 weeks’ leave, and it is not reasonably practicable for her to go back to her old role, you are entitled to let her return to a different job (as long as it is suitable). Note that the terms must be no less favourable than she enjoyed previously. If she refuses to take that job, and that refusal is unreasonable, a subsequent dismissal would not be automatically unfair (although it might still be procedurally unfair, depending on the circumstances). If, on the other hand, the job that she was offered was unsuitable, she may well decide to resign and claim constructive dismissal.

Beware of situations in which you might look to replace the employee with someone else. Just because there may be a better person for the job, that doesn’t allow you to dismiss or reassign the employee when she returns from maternity. To the contrary, doing so would lead to a discrimination claim.

Flexible working

Many, but not all, women returning from maternity leave will decide that some adjustment to their pre-pregnancy working life – whether that’s shorter weeks, later starts, or earlier finishes (for example) – is in order. This is something that the employee might want to discuss with you during her maternity leave.

Employees who have worked for their employer for at least 26 weeks have the right to request flexible working, and the employee and employer must comply with strict, statutory requirements as far as processing that request and implementing or rejecting change is concerned. An employer must give the application proper consideration, and is only able to refuse a flexible working request on certain, specific grounds (although they are quite wide).

The employee may bring a claim if they think the employer has failed to comply with the statutory regime. But there is another possible consequence of an employer not agreeing to flexible working: a claim for indirect sex discrimination. In that case, the employer would need to justify its decision not to allow the woman to change some aspect(s) of her working pattern on good business grounds. The refusal might even give rise to a constructive dismissal.

And finally,

Last month, the European Court of Justice (CJEU) highlighted the importance of an employer’s assessment of the risks posed to employees who are breastfeeding their children.

In that case, Ramos v Servicio Galego de Saude, the CJEU said that an employer must carry out a specific assessment taking account of the employee’s individual situation in order to ascertain whether her health and safety, or that of her child, is exposed to risk at work. Failure to do that amounts to direct sex discrimination; it is less favourable treatment related to pregnancy or maternity leave.

That decision takes protection for women one step further than UK law currently provides for. In the UK, a woman who says that she has been treated less favourably at work because she is breastfeeding is not entitled to bring a claim of direct sex discrimination, although she might have a claim for indirect discrimination. The safest course of action for employers now is to carry out a thorough risk assessment that focuses on the individual concerned, and all their circumstances, as part of the employer’s health and safety obligations.

If a woman returning from maternity asks for time off work to breastfeed, there is nothing firm to say that you must allow it. However, it may well be the ‘reasonable’ thing to do. In fact, there is a risk of indirect sex discrimination in not enabling the employee, via flexible working arrangements and/or suitable facilities at work, to breastfeed or to express milk.

Maternity leave requires an employer and employee to work together. It’s vital that each understands what is expected of them. While the rules can be tricky and nuanced, and worth checking in individual cases, many are quite firmly established – and that lends itself to handling maternity leave situations consistently and fairly.