Maternity
Rights continue to cause headaches for employers. Employment law
specialist Jeya Thiruchelvam of Harding Evans Solicitors tackles
some common questions asked.
1. I’ve heard that expectant and new mothers are going to be
given more rights. Is this correct?
The Maternity and Parental Leave and the Paternity and Adoption
Leave (Amendment) Regulations 2006 will come into force on 1st
October 2006 and are set to introduce a number of key changes in
the area of maternity rights.
At present an employee must have at least 26 weeks service by
the 14th week before the week that her child is due to be born
in order to qualify for Additional Maternity Leave. However,
this requirement is set to be abolished by the Regulations with
the effect that if an employee is entitled to Ordinary Maternity
Leave (which is 26 weeks) then she will also be entitled to
additional maternity leave of a further 26 weeks. As a result
most employees will be allowed to take up to one year of
Maternity Leave if they choose to do so.
In addition the Regulations will allow employers to make
reasonable contact with an employee whilst she is on Maternity
Leave and it will be open to an employee to undertake training
for up to ten days during her maternity leave period. The idea
behind these ‘keeping in touch days’ is that they will allow the
employee to do just that whilst on Maternity Leave.
It is important to note that the Regulations will also require
an employee to give her employer more notice of when she intends
to return to work before the end of her Additional Maternity
Leave. The notice period will be extended from four to eight
weeks.
2. Does an employee who is returning from Maternity Leave
have the right to return to the same job on a part-time basis?
An employee who is returning to work from Maternity Leave has
the right to return to her old job on the same terms and
conditions. The right does not extend to a return to work on
different terms to allow an employee to work on a part-time
basis to accommodate her childcare commitments. However, if an
employee makes a request to work part-time on such grounds then
an employer must ensure that he considers the request carefully
and that he does not refuse it on potentially discriminatory
grounds. If the employer insists that a particular job cannot be
carried out on a part-time basis without good reason then he may
be guilty of indirect sex discrimination on the basis that such
a condition will have a disproportionate impact on women who are
more likely to have primary childcare responsibility and are
therefore less likely to be able to work full-time.
3. Is an employee allowed to benefit from a pay rise whilst
she is on maternity leave?
Yes. If an employer awards a pay rise that takes effect at any
time from the start of the period used to calculate an
employee’s Statutory Maternity Pay to the end of her Maternity
Leave then he must recalculate the Statutory Maternity Pay owing
to the employee and pay her the balance.
4. Is an employee allowed to take paid time off to attend
antenatal cases?
Yes. An employee is entitled to paid time off during working
hours in order to receive ante-natal care if she is pregnant and
has an appointment to receive ante-natal care on the advice of a
medical practitioner. An employer may require the employee to
produce a certificate stating that she is pregnant and an
appointment card confirming that an appointment has been made.
5. I have an employee who has been off work for 3 months with
post-natal depression. We are a small business and her absence
is causing real problems. Can she be dismissed?
The dismissal of an employee for a pregnancy related reason at
any time from the inception of pregnancy to the end of the
statutory Maternity Leave period is automatically unfair. The
dismissal will also amount to direct sex discrimination. The
position is different after the end of the Maternity Leave
period.
A childbirth related dismissal that occurs after the end of the
Maternity Leave period will not be automatically unfair, but may
be unfair under ordinary principles of unfair dismissal. An
employer considering dismissing an employee with a pregnancy
related illness after the end of her Maternity Leave must ensure
that he adopts a fair procedure which will involve consulting
with the employee, considering the medical position and
redeployment.
Maternity
Rights continue to cause headaches for employers. Employment law
specialist Jeya Thiruchelvam of Harding Evans Solicitors tackles
some common questions asked.