Even in the 21st century, where over 50% of the UK workforce is female, women are experiencing discrimination due to pregnancy, fertility treatment and returning work.
Company’s need to understand the law surrounding how to treat employees who are due to start or are on Maternity leave and those employees on other forms of parental leave (Paternity Leave, Shared Parental Leave, Adoption Leave).
The law in the UK states that it is unlawful to treat women unfavourably due to pregnancy or due to a pregnancy-related illness. Under the Equality Act 2010, it states that you must not discriminate against someone you employ, or are considering employing, because of:
- Their pregnancy
- An illness related to their pregnancy, including related time off.
- Maternity pay or leave they take, or plan to take.
The law states that this applies to any person legally defined as an employee or worker and some self-employed people.
Discrimination can come in the form of the following:
- Dismissing someone
- Not offering them a job
- Changing their pay or other terms
- Forcing them to work whilst on maternity leave.
- Stopping them returning to work because they-re breastfeeding
The law also dictates that the person has particular rights during the ‘protected period’. This is the time from when they become pregnant until either:
- Their maternity leave ends.
- They return to work.
- They leave their job.
Company’s need to know how to be supportive and how to avoid discrimination of all kinds with employees who may already be feeling vulnerable and nervous regarding the change to their lives that a child brings.
Health and Safety
The Management of Health and Safety at Work Regulations 1999 requires employees to fulfil and complete a general health and safety risk assessment on all employees and particularly for new or expectant mothers. The risks involved could include:
- Stress and Wellbeing concerns
- Hazardous work locations
- Heavy lifting and general overexertion
Risk assessments should be reviewed across the whole of the employee’s pregnancy. If it is not possible for the risks to the employee to be removed, they must be offered suitable alternative work on similar terms and conditions must be found. If this is not possible, the employee must be suspended on full pay which must continue until their maternity leave begins or until it is safe for them to return to work.
Maternity Leave and Pay
Company’s must ensure they understand the rights afforded to employees when they commence maternity leave.
Statutory Maternity Leave is for a period of 52 weeks which is:
- Ordinary Maternity Leave – first 26 weeks
- Additional Maternity Leave – last 26 weeks
Employees are not required to take the full 52 weeks (although they are entitled), but they legally must take the 2 weeks after their baby is born (or 4 weeks if they work in a factory setting).
Statutory Maternity Pay (SMP) is paid for up to 39 weeks, split as:
- 90% of your average weekly earnings (before tax) for the first 6 weeks
- The current SMP rate or 90% of your average weekly earnings (whichever is lower) for the next 33 weeks
Employees will qualify for Statutory Maternity Leave is they are defined as an employee and have given the correct notice of at least 15 weeks before their due date.
To qualify for Statutory Maternity Pay the employee must:
- Having average earnings at or above the national Lower Earning Level, each week
- Provided the correct notice and proof they are pregnant
- Have worked for the Company continuously for at least 26 weeks continuing into the ‘qualifying week’ – the 15th week before the expected week of childbirth
Source: https://www.gov.uk/maternity-pay-leave
If the employee’s baby is born early or they suffer from a still born after their 24th week of pregnancy or the baby dies after birth, they will be eligible for Statutory Maternity Leave and Statutory Maternity Pay.
Please see our guidance on Supporting Employees with Maternity Loss.
Annual Leave
Employees on Maternity Leave will accrue annual leave, including any bank holiday that have occurred whilst on leave.
They will be able to take any accrued annual once they return from Maternity Leave.
It is discrimination and against the law if you do not allow employees to take their holiday due to pregnancy.
Redundancy
In the event that the Company needs to make an employee redundant from their role and if the individual or individuals affected are pregnant, are on maternity leave or are new mothers, the law affords them additional protection.
This would be during the redundancy process and Company’s should always seek advice.
With effect from 6th April 2024, under The Protection from Redundancy (Pregnancy and Family Leave) Act 2023, employees who are pregnant or returning from maternity, adoption or shared parental leave will receive priority status for redeployment opportunities in a redundancy situation.
Current legislation dictates that employees on maternity leave, shared parental leave or adoption leave have the right to be offered a suitable alternative vacancy, if one is available, before being made redundant. This gives employees on these types of leave priority access to redeployment opportunities over other redundant employees.
The act will extend the priority status to pregnant employees and those who have recently returned from maternity/adoption leave and shared parental leave.
Here’s some additional helpful links and guidance: