Five myths about…..maternity leave and pay

Essential Information for Employers

Most employers will know about the rights and protections afforded to women who are pregnant or on maternity leave.   However, there are still some areas which cause confusion or which are troubling.   Here we dispel some of the myths regarding pregnancy and maternity rights.

1. It is unlawful to make an employee redundant during her maternity leave

It is not unlawful to make a woman on maternity leave redundant.  However, there must be a genuine redundancy situation as a result of which the role of the employee on maternity leave has ceased to exist and you also must follow a fair procedure and offer her any suitable alternative employment available.  If there is not a genuine redundancy situation or if you do not follow a fair procedure, you risk not only a claim for automatic unfair dismissal (where the employee does not need 2 years’ service to bring a claim) for breach of maternity protection laws but also a potential claim for maternity discrimination.

There is no denying, therefore, that this is an area where employers do need to tread carefully and employers must make sure they observe a fair process and have regard to the special protection afforded to women on maternity leave in a redundancy situation.

A fair procedure means, first, following a fair selection process before putting any employees at risk.  If there are a number of employees who carry out the same type or similar work that is being reduced, you must consider them all in your “selection pool” and use objective criteria to determine which of those employees should be selected for redundancy.  It goes without saying that you cannot use pregnancy or maternity as the reason for selecting an employee for redundancy.  However, you must be careful to make sure that the selection process you use does not disadvantage employees who are on maternity leave.   So, for example, you need to be careful, if you use attendance records as one of your selection criteria, to make sure you disregard any absence related to pregnancy (e.g. pregnancy related sickness absence) and maternity (or other related leave).

Secondly, you also must follow a fair consultation process which means consulting with the employee about the reasons why you are contemplating making redundancies, any ways of avoiding the redundancy situation and any alternative positions that are available.   Where an employee is on maternity leave, it is vitally important to communicate with and consult with the employee about any redundancy situation that could affect them as early as possible as, being away from work, it can be all too easy for an employee to feel that they are not being kept informed.  This includes inviting the employee on maternity leave to meetings to discuss the situation before any decisions have been made – like you would an employee who is at work.

In addition, it is vitally important to remember that employees on maternity leave are entitled to be offered any suitable alternative roles in priority over any other employees.   It is a right to be offered the role which means an invite to apply for it will not suffice.  This is a statutory right that women on maternity leave have and failure to observe this can lead to a claim of automatic unfair dismissal (If the employment ends) or a claim for detrimental treatment (if the employment does not end).   There is also the possibility that the employee may also try to bring a claim for maternity discrimination.

2. You don’t have to give employees on maternity leave a pay increase

This is false.  Employees who are on maternity leave must be given the same pay rise as you give your other employees.  The pay rise must be reflected in the employee’s earnings-related statutory maternity pay (whereby the employee receives 90% of their pay for the first six weeks of maternity leave).   Even if the pay rise is given after the employee has gone onto the flat rate of statutory maternity pay, the employee’s earnings related statutory maternity pay must be recalculated to include the pay rise and a top up payment must be made.

3. All employees returning from maternity leave are entitled to return part time

This is a not true.  There is no right to return to work part time after any parental leave.  However, it is very common for employees to ask to return to work part time or to work flexibly after taking maternity leave and a refusal to allow such a request can amount to indirect sex discrimination if it can’t be justified.

As an employer you must consider such a request very carefully and thoroughly, including giving consideration to alternative ways in which the employee may be able to work flexibly if her particular request cannot be met.   If you are unable to accommodate the request, you must be able to justify your decision on genuine and sound business grounds.  There is a risk of a claim for indirect sex discrimination if you don’t.  An indirect sex discrimination claim arises when an employer applies a policy, rule or practice which applies equally to both sexes but puts women at more of a disadvantage (than men) and that policy or rule cannot be justified.  In the context of a refusal of a request to work part time, the argument would be that a requirement for an employee to work full time puts women at a disadvantage in comparison to men, as women still tend to have the greater share of childcare obligations.

Also, if the employee exercises her statutory right to request flexible working, you are obliged by law to consider it and any refusal of the request must fall within one of the “permitted business reasons” listed under the flexible working legislation.  However, while giving one of the “permitted business reasons” for refusal may satisfy your obligations under flexible working legislation, it is unlikely to satisfy the more rigorous test of “justification” required under indirect sex discrimination legislation.

4. Businesses who only employ a few staff are exempt from maternity laws

Ok, perhaps this is a myth that has long been dispelled but as archaic as it sounds, many moons ago there was an exemption for small businesses from maternity leave legislation.  The law has since changed and we can categorically say that this is a complete myth – ALL employers regardless of whether they have one member of staff or 10,000 are subject to maternity legislation and required to observe all the protections afforded to women during pregnancy and maternity.

5. Apprentices are not entitled to maternity leave or pay.

Not true.   Apprentices have the same employment rights as employees during pregnancy and maternity leave.   Apprentices are entitled to take 52 weeks’ maternity leave the same as all other employees, regardless of their length of service or hours of work.   They are entitled to reasonable paid time off for ante natal appointments.  They are also protected, the same as employees and workers, from any unfavourable treatment on the grounds of pregnancy and maternity leave.   This means, for example, that an employer cannot refuse to continue to provide the apprentice’s training because the apprentice will be on maternity leave for part of the apprenticeship.

Apprentices are also entitled to the same rights on returning from maternity leave which means that, if they are returning after 26 weeks of maternity leave, they are entitled to return to the same job as before, on the same terms and conditions, and if returning after 52 weeks, they are entitled to return to the same job or if this is not reasonably practicable, to a suitable alternative job on similar terms and conditions.  In other words, when an apprentice returns from maternity leave, she should be allowed to pick up her training where she left off.   The exception to this right is where the role has, in the meantime, become redundant.

How Real Employment Law Advice can help you

If you have any question regarding pregnancy or maternity rights including rights to maternity leave and pay or if you have a particular issue regarding an employee who is pregnant or on maternity leave that you wish to discuss, please do not hesitate to contact the team at Real Employment Law Advice.

This article was written and researched by Miranda Amos, Solicitor at our Salisbury Office.  Miranda advises clients across Hampshire, Wiltshire and Nationwide.

 Miranda is the firms expert on maternity, pregnancy and parental rights. If you have any questions or concerns about the proposed changes or any issues in your business please do get in touch with Miranda directly!

Don’t forget getting advice from a Solicitor does not have to be complicated or costly!