A recent survey has highlighted that some employers could do with guidance on dealing with staff on maternity leave and who then return to work.
The Equality and Human Rights Commission have recently released a survey detailing concerning statistics of how many employers view pregnancy and maternity. (https://equalityhumanrights.com/en/our-work/news/employers-dark-ages-over-recruitment-pregnant-women-and-new-mothers) 44% of employers believe that women who have more than one pregnancy can be a “burden” to the team and 59% of employers believe a women should have to disclose whether she is pregnant during the recruitment process.
Pregnancy and maternity are protected characteristics under the Equality Act 2010 and the survey results indicate employers may be at risk of a discrimination claim which could result in financial and reputational damage. To assist, we have provided answers to some of the most common maternity questions we receive from our clients.
1. Can I ask if an employee is pregnant or trying for a baby during the recruitment process?
No, and you should be careful when this information is disclosed voluntarily. Pregnancy is irrelevant to whether or not a person is able to carry out the majority of roles. You should ensure that you have a sufficient paper trail to evidence how the selection criteria has been applied and how the successful candidate has been selected. If a woman believes she has not been offered a job due to being pregnant she may have grounds to bring a claim for discrimination.
2. An employee has recently informed me that they are pregnant. What steps do I need to take?
Employers have special duties to protect the health and safety of their pregnant employees. You will need to assess any workplace risk that new or expectant mothers or their baby may be exposed to. You may need to consider what changes are necessary to remove risks. This may include changing working conditions, hours, duties, or alternative work on terms that are not “substantially less favourable” and where this is not possible suspension on full pay.
You will need key dates from an employee including the expected week of childbirth (EWC) and the date the employee intends to start maternity leave. Once you have received notice of an employee’s chosen maternity leave start date you have 28 days to notify her of the end date of her maternity leave. An employer does not have to provide this notification in writing, but it is advisable to do so.
You should also remember employees are entitled to paid time off for antenatal appointments.
3. Will my employee accrue holiday during their maternity leave?
During maternity leave employees are entitled to all of their contractual benefits with the exception of pay. Employees therefore accrue holiday in the normal manner during their maternity leave. However, they are not allowed to take annual leave during their maternity leave and need to use it either before their maternity leave, or after their return to work.
4. My employee is half-way through her maternity leave and has just handed in her notice. Do I have to pay them for the remainder of maternity leave?
If an employee is dismissed or resigns during their maternity leave then their leave will come to an end on the termination date of their employment. However, the employer is still required to pay their Statutory Maternity Pay (SMP) until the end of the SMP period. The SMP payment is not conditional upon the individual remaining an employee of the employer once the employee has met the relevant, qualifying criteria.
5. My employee wants to change their return to work date. Are they allowed to do this?
If your employee wishes to reduce or extend their maternity leave then they need to provide eight weeks’ notice to you, although if you agree they can provide a shorter notice period. The maximum, statutory maternity leave that an employee can take is 52 weeks. The return date can potentially be extended by holiday or parental leave.
6. Can I make an employee redundant during their maternity leave?
Potentially, but you should not select an employee for redundancy based on their maternity leave or pregnancy. You would still need to follow a reasonable redundancy procedure and if the employee is selected for redundancy then they have a right to be offered any “suitable alternative roles” ahead of the other employees who are being made redundant.
7. Does my employee have the right to return to the same job?
If an employee has been on maternity leave for 26 weeks or less then she has the right to return to the same job that she was employed in before her maternity leave. However, if she returns after the first 26 weeks of maternity leave and you have a reason why it is not practicable to return back to the same job, the employee’s right is to return to a suitable, alternative job. The employee’s pay and conditions must not be less favourable than they would have been had they not been absent from work.
8. My employee has submitted a flexible working request, to change their hours on their return from maternity leave. Do I have to accept this?
You do not have to accept any changes to the employee’s hours of work upon their return from maternity leave. You do however, have a duty to consider the request in a reasonable manner, and the employee should be informed of the outcome within a three month decision period. You are only able to reject the request for statutory business related reasons. You should consider your position in accordance with your flexible working policy and seek further advice if required.
9. My employee is returning from maternity leave. Do I need to provide breast-feeding facilities?
If your employee is breastfeeding then you will need to carry out a risk assessment and do what is reasonably practical to control such risks. While there is no statutory right to provide facilities for breastfeeding itself to take place, HSE guidance recommends employers should provide a private clean environment, other than toilets, for expressing milk and a fridge to store it in. There is also no statutory right to time off work for breastfeeding. However, the Equality and Human Rights Commission Code advises that employers should try to accommodate employees who wish to take time off to breastfeed.
10. What other factors do I need to consider for an employee on maternity leave?
You should also consider that the employee has had some time out of the working environment. They may be feeling anxious about returning to work. Remember while on maternity leave employees can use ten Keeping in Touch (KIT) days. These allow your employee to attend work or training, which should assist in preparing for a return.
An employee may also want to apply to convert a remaining period of statutory maternity leave into shared parental leave. This entitlement can be taken flexibly within the first year after birth or adoption, by either parent or shared between parents. It can be taken in one block or several discontinuous blocks with periods of work in between.
Laura McFadyen is a partner based in Stephens Scown’s Exeter office. She is an HR and employment law specialist. For more information please contact Laura on 01392 210700 or email firstname.lastname@example.org.