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Your Rights During and After Pregnancy

You've just discovered you are expecting a baby, you are feeling elated and excited.

However, this can sometimes be overshadowed if you are having difficult times with your employer and are worried about whether your job is secure leading up to the birth of your baby and beyond. We get asked lots of questions about maternity pay and rights at work during pregnancy and maternity leave. Employment law solicitor, Joanna Robson is an expert in maternity related employment law and can answer some commonly asked questions on where you stand legally.

Q: I have just found out I'm pregnant, when do I have to tell my employer?

A: You have to inform your employer that you are pregnant by week 25 of your pregnancy. You can get your Mat B1 form from your midwife, which is usually handed out at your 20 week scan. Some women may choose to notify their employer sooner and if their bump starts to show or they have to miss work because of pregnancy related illness. I would always advise women to tell their employers after they have had their 12 week scan. This is because upon such notification, you are protected from risks in the workplace as your employer will be under a duty to carry out a risk assessment to identify and eliminate risks to you and your baby from your working environment. Such findings may include a removal of heavy lifting tasks or even in some cases, night shift working. If your employer doesn't know you are pregnant, it becomes more difficult to eliminate you from such risks at an early and crucial stage of your pregnancy.

Q: I recently told my employer I am pregnant and they have since disciplined me for poor performance, my previous work track record has been excellent. I feel pushed out. Where do I stand?

A: You are entitled to receive fair treatment at work as a pregnant employee. In the event that your employer is attempting to fabricate issues of poor performance in a bid to push you out of your employment since their learning of your pregnancy, it would seem that they are treating you less favourably and subjecting you to detriment because of your pregnancy. This is unlawful conduct on the part of your employer. You may be able to bring a claim for unfair dismissal and sex discrimination in the employment tribunal. However, in cases like these it is imperative you take prompt action. It is also best to adopt a paper trail approach with your employer rather than allowing the situation to continue through verbal communication so that you can collate evidence if this becomes necessary at a later date.

Q: My job involves quite a lot of heavy lifting, do I have to carry on with such tasks now that I'm pregnant?

A: Your employer is obliged to promptly carry out a risk assessment on your pregnancy in the workplace. Therefore, if you are in a high risk working environment, it is best to tell your employer of your pregnancy sooner rather than later so that any risks can be eliminated from your working day. Such tasks like heavy or moderate lifting should be removed from your daily tasks and you should be assigned light tasks instead. If this is not possible, your employer should agree to suspend you on full pay in certain circumstances where the work related risks cannot be eliminated.

Q: I work night shifts, should I continue to do this whilst pregnant?

A: Generally speaking, the finding of a risk assessment should declare that night working is riskier than day shifts. This is because it is often the case that there are less staff available to support a pregnant employee during a night shift when compared to day shifts, where there support is more readily available. The test of whether night work should be eliminated as part of a pregnancy risk assessment depends on what type of work you are undertaking and the level of support you have available.

Q: I have antenatal appointments booked, do I have to use my annual leave to take these?

A: No, you are entitled to paid time off for all ante natal appointments and scans. You may also be entitled to paid time off to attend parentcraft classes such as yoga or specialist pregnancy classes provided that your GP and midwife confirms that it would be in the best interests of the health of you and your unborn child to attend such classes.

Q: I work part time and my employer is telling me I have to rearrange my antenatal appointments to the days I do not work, is this fair?

A: It can be extremely difficult to dictate to the NHS which days you can or cannot attend ante natal appointments! Therefore, if your ante natal appointments fall on a day which you would usually work then your employer is obliged to allow you to take paid time off to attend such appointments.

Q: I have been signed off work with severe morning sickness for 2 weeks, my employer has indicated that I will lose my job if I take anymore time off, where do I stand?

A: You are entitled to sickness absence in the same way as any other employee of your employer's business. You will be entitled to statutory sick pay during your period of sickness unless your contract of employment provides for a period of enhanced sick pay instead. Put it this way, if you were not pregnant i.e you had broken your leg, would you be threatened with job loss? If there is any inference of discrimination, you should take action immediately. You are entitled to be treated fairly and not suffer detriment as a result of your pregnancy.

Q: Am I entitled to maternity leave?

A: Most women have a right to take up to 52 weeks' maternity leave regardless of length of service with their employer.

Q: Am I entitled to maternity pay and if not, what are the alternatives?

A: Provided you have worked for your employer continuously for 26 weeks' at the beginning of your 25th week, you may qualify for statutory maternity pay ('SMP'). To be eligible for SMP, you must have earned £95.00 per week during the qualifying weeks. The qualifying weeks' for SMP purposes accrue from week 17 to week 25 of your pregnancy (known as the 'Qualifying Period'). If you are eligible, you will receive SMP for 39 weeks comprising of 6 weeks' at 90% of your average weekly earnings over the Qualifying Period or £123.06 per week whichever is the lesser. Thereafter, you will receive 33 weeks' at the prescribed SMP rate, currently £123.06 per week. If you are not entitled to SMP, you may be eligible to receive maternity allowance, which you should apply for through your local JobSeekers office.

Q: When can I start maternity leave?

A: You are entitled to 52 weeks' continuous maternity leave, which may commence no earlier than the end of your 29th week of pregnancy and no later than the birth date of your baby. You're not under any obligation to tell your employer how much maternity leave you are planning to take and your employer should assume that you are taking the full 52 week period, unless you have indicated otherwise. However, you are obliged to tell your employer the date in which you intend to commence maternity leave by no later than your 25th week of pregnancy so that your employer has adequate time to find maternity cover for you.

Q: Can my employer force me to commence maternity leave earlier than planned?

A: You may choose the date in which you wish to commence maternity leave. However, if you are off sick with a pregnancy related illness during or after your 36th week of pregnancy, your employer is entitled to trigger an immediate commencement of your maternity leave on or after your 36th week.

Q: What about annual leave – when should I take it and how much am I allowed whilst on maternity leave?

A: In most cases, your holiday entitlement to annual leave as contained in your Contract of Employment will prevail provided that it does not fall short of the statutory entitlement, this currently being 28 days' per year inclusive of bank and public holidays. Whilst on maternity leave, your annual leave will continue to accrue at the normal rate. You will be entitled to accrue contractual annual leave for the first 26 weeks' of maternity leave and you will then become entitled to accrue statutory entitlement to annual leave for the remaining 26 weeks. In most cases, the accrual rates of contractual and statutory annual leave are equivocal but you should check your contract of employment.

Q: My employer's holiday year expires half way through my maternity leave… Help!

A: When calculating your maternity leave dates, it would be prudent to also check your employer's holiday calendar year. Most employers operate a January to December policy and in most cases, employers do not provide for a carry-over policy of unused holiday for fear that employees could accrue exasperated holiday entitlements over a longer period of time. Therefore, if you are planning on going off on maternity leave in say, July, for 52 weeks, you should aim to take all of your annual leave entitlement you would have otherwise accrued up to December prior to commencement of your maternity leave. If you do not, you will lose your accrued holiday leave upon commencement of the new holiday calendar year the following January. This is because you are not entitled to receive remuneration (or payment in lieu of such holiday accrual) whilst in receipt of SMP.

Q: I have heard that I can go back to work and still receive SMP?

A: You are entitled to attend for work for a maximum of 10 days during your 52 week maternity leave in order to 'keep in touch' with your workplace and any of its developments. This has recently been introduced so as to make the transition back to work following a 52 week absence much easier. You are entitled to be paid for these 10 keeping in touch days at your usual remuneration rate without sacrificing your continuing entitlement to SMP. Such days are useful where you need to go into the office for meetings, training or just keeping up to date with what is going on at work. You are not obliged to exercise your right to return to work for up to ten days' during your maternity leave and your employer cannot force you to attend the workplace if you choose not to.

Q: Is my employer obliged to keep me informed of developments at work such as a promotional opportunities whilst I'm on maternity leave?

A: You have a right to be treated no differently in comparison to your colleagues who attend the workplace. This same principle applies to promotions. In the event that a promotion came up at work which was suitable to your skills and career progression, your employer should contact you about it so that you can apply for it whilst you are on maternity leave. If you can establish that you were either not afforded the opportunity of applying for a promotion or were not given a promotion because of your maternity leave status, then this may constitute an act of sex discrimination.

Q: The number of redundancy casualties appears to be ever increasing, I'm concerned I might be selected for redundancy because I'm on maternity leave?

A: Those women on maternity leave are regarded as having 'protected status' over imminent redundancies in the workplace. This means that your employer must try everything to either save your job or find you suitable alternative employment. If your employer fails to adopt such practice, you may have grounds to complain. However, the area of redundancies during pregnancy and maternity leave is extremely complex and is dealt with on a case by case basis.

Q: I am due to return to work from maternity leave soon. However, my employer has told me that my old job is no longer available. Are they allowed to do this?

A: The current legislation states that you are entitled to return to your same job which you were carrying out immediately prior to your maternity leave at the end of your maternity leave. Your employer is under a legal obligation to keep your job open for the entire 52 week period, this being the maximum entitlement to maternity leave. It is not acceptable or lawful for your job to be taken over by a replacement permanent employee therefore not giving you the opportunity to return to your job.

Q: I have been dismissed whilst on maternity leave, do I have any right to complain?

A: If you have been dismissed without reason whilst on maternity leave, you can make a claim to the employment tribunal for unfair dismissal and sex discrimination. You should seek legal advice on your options and heads of claim.

Q: I wish to return to work on flexible hours to fit around my childcare, am I entitled to request this?

A: Provided you have 26 weeks' continuous service with your employer at the time of your flexible working request, you are entitled to make an application. You must make your request in writing to your employer and give them at least 28 days in which to respond. Your employer may either give their decision in writing or they may invite you to a meeting to discuss your request. Your employer may refuse your request to return to work on a flexible working basis but they must be able to demonstrate that there are objective business reasons for their refusal. If the request is refused, you should be given the opportunity to appeal against the decision. You may have grounds to complain if your employer has unreasonably refused your request or 'singled you out' from others in the workplace.

Q: If I have a complaint over the way my employer has treated me because of my pregnancy and/or maternity leave, what steps should I follow?

A: If you believe you have been receiving less favourable treatment at work because you are pregnant or on maternity leave, whether it be your employer's general attitude towards you at work, failure to consider you for a promotion or unfairly selecting you for redundancy, to name but a few, you may be able to take things further. In the event that you do believe you are receiving less favourable treatment either since the announcement of your pregnancy, during your maternity leave or your pending return from maternity leave, you should seek legal advice without delay because there are stringent time limitations which you must comply with in order to seek a remedy. In all tribunal proceedings, a claim must be lodged with the Tribunal within 3 months' of the last act of less favourable treatment complained of. You should seek the advice of a legal expert without delay to ensure that your rights are protected. Our solicitors' at Babylaw Solicitors are happy to assist and we even offer an out of hours service as we appreciate it can be difficult to talk things through either during the working day and/or when you are looking after a new baby at home. Babylaw offers a free 30 minute consultation either by telephone, face to face or by email so that you can weigh up your options before taking the plunge in making a stand against your employer over their mistreatment of you. Our contact details are available on our website, www.babylaw.co.uk

Q: Most women are probably afraid of how much it might cost them if they go down the legal route?

A: Lots of women that contact me are worried about how much things are going to cost, especially as they are sometimes looking at the prospect of losing their financial security. Babylaw Solicitors offers an initial consultation free of charge to see whether there are any potential remedies and to ascertain whether I can help. We also offer a 'No Win, No Fee' funding arrangement. An alternative funding arrangement is through legal expenses insurance, which is often contained in the household contents insurance policy. The great thing about having this insurance is that it won't affect your contents insurance renewal premium as it is not regarded as a claim; in most cases, your contents insurance won't go up if you use it.

Joanna Robson

Joanna Robson, Founder and Principal Solicitor, Babylaw Solicitors

Babylaw is a niche employment law practice specialising in providing advice to those who are suffering from disadvantage at work resulting from their pregnancy and/or child birth.
BabyLaw
We can assist you if you are having difficulties at work whether it be because of your pregnancy or returning to work following a period of maternity leave. We work exclusively for employees, offering a confidential and personal service. Information on this article does not constitute legal advice.
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