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Legal
Basics
-
Employment
Last modified:
24 July 2007
Maternity and Paternity Rights
Maternity Rights
There are now 6 basic rights relating to maternity. We will try and cover the basics of all of them here. They are:-
not to be dismissed on grounds of pregnancy or childbirth
a right to maternity leave for all employees
a right for a mother to return to work after extended maternity leave
a right to maternity pay
right to alternative work or payment during suspension on grounds of maternity
time-off for ante-natal care
These rights are quite extensive and compliance can be very difficult and disruptive to employers. The law therefore places a heavy burden on the employee to comply with strict procedures and timetables.
Not
to be dismissed on grounds of pregnancy or childbirth
All employees, regardless of how long they have worked for their
employer, are entitled not to be dismissed simply because they are pregnant, or
have given birth. In fact any such dismissal is
automatically
unfair.
A
right to maternity leave for all employees
Statutory maternity leave is for 52 weeks (if the week
your baby is expected to be born starts before 1 April 2007, it is for 26 weeks,
with an extra 26 weeks if you meet certain conditions).
You may be entitled to receive Statutory Maternity Pay for up to 39 weeks of the
leave.
Qualifying for statutory maternity leave
If your baby is due on or after 1 April 2007
As an ‘employee’ you have the right to 26 weeks of ‘Ordinary Maternity Leave’
and 26 weeks ‘Additional Maternity Leave’ – making one year in total. Provided
you meet certain notification requirements, you can take this no matter how long
you’ve been with your employer, how many hours you work or how much you’re paid.
If your baby is due before 1 April 2007
As an ‘employee’ you have the right to 26 weeks of ‘Ordinary Maternity Leave’.
Provided you meet certain notification requirements, you can take this no matter
how long you’ve been with your employer, how many hours you work or how much
you’re paid.
If you’ve been with the same
employer for 26 weeks by the end of the 15th week before the beginning of the
week when your baby’s due, you also have the right to an extra 26 weeks of
'Additional Maternity Leave’ so you can take up to one year in total.
Additional maternity leave is usually unpaid, but some
companies will contribute.
It is for the employee to decide when she wants to take her maternity leave, but she cannot start her leave earlier than the eleventh week before the expected week of childbirth, and her maternity leave is automatically triggered by any day on which she is off from work because of the pregnancy or childbirth, after the beginning of the sixth week before the expected week of childbirth.
The right is conditional upon the employee complying with a complex set of notice requirements. She must give the employer at least 28 days notice of the date on which she intends her maternity leave to start (unless this is not reasonably practicable, for example she goes into labour prematurely). She must also inform her employer in writing at least 28 days before her maternity leave period starts that she is pregnant, and give them the expected week of childbirth. An employer can insist upon a doctor's certificate to confirm the information provided.
Provided the employee complies with the rules
she can return to work at the end of her 26 weeks leave. She can return earlier
if she wishes, but will need to give her employer seven days notice of her
intention to do so.
A
right for a mother to return to work after maternity absence
Whereas all employees have a right
to return to work after their 18 weeks' maternity leave, only those who have
worked for at least one year (decreased from two years for those whose expected
week of childbirth falls on or after 30 April 2000) for their employer at the beginning of the 11th week
before the expected week of childbirth, qualify to extend their absence up until
the end of the 29th week after the actual date of childbirth, and still be
entitled to return to work.
The employee must have satisfied all of the requirements for maternity leave, and must also have included with that information confirmation that she intends to exercise her right to return to work. She should do this even if she does not think it likely, as if she fails to notify them of this intention before she leaves she will lose her right to return. An employer can require further confirmation from an employee that she intends to return. This request cannot be made earlier than three weeks before the end of the maternity leave period, and must be replied to within 14 days.
Finally when the employee wishes to return she must give her employer at least 21 days' notice in writing of the date on which she expects to return to work. The employer can postpone this date for up to four weeks, provided they give the reasons for doing so, and the date on which they want they employee to return.
The employee is entitled to return to the job in which she was employed before she left on maternity absence, and on terms and conditions not less favourable than those she would have been on if she had not been away.
A right to maternity pay
Statutory Maternity Pay (SMP) was introduced in 1987. To qualify
the employee needs to satisfy the following conditions:-
If she can satisfy all these conditions then she will qualify for SMP at the higher rate (9/10ths of her normal week's pay) for six weeks, and then at the lower rate (fixed by the Government - currently £100.00pw (April 2003)) , or 9/10ths of average weekly earnings if this is leass, for the remainder of the maternity pay period (up to a total of 20 weeks in all).
If an employee does not qualify for SMP she may claim the state maternity allowance.
A
right to alternative work or
payment during suspension on grounds of maternity
An employer is required to suspend
an employee where she is a woman of child-bearing age and her work is of a kind
which could endanger the health and safety of new or expectant mother, or that
of her baby; or where the employee is a new or expectant mother who works
nights, who has a doctor's certificate confirming that she should not be at work
for any period during the night.
Before being suspended from work on grounds of maternity an employee has the right to be offered alternative employment. If this is available, but not offered then the employee can complain to an Employment Tribunal.
In addition an employee who is suspended on maternity grounds is entitled to be paid her normal pay during the suspension, unless she unreasonably refuses suitable alternative employment.
Time-off for ante-natal care
A pregnant employee has a right not to be unreasonably refused paid
time off work to attend ante-natal care recommended by a doctor, midwife or
health visitor.
Paternity and Parental Leave
In addition to maternity
leave (see above) there are two other
circumstances in which leave can be taken by parents.
Paternity Leave
Two weeks paid paternity leave has been introduced for the first time for
fathers of babies due on or after 6 April 2003. Fathers
will get a minimum of £100 a week, or 90% of their average weekly earnings if
this is less, for two weeks, known as Statutory Paternity Pay (SPP). It
can be taken from the date of birth or up to eight weeks from the birth. To
qualify, the man must have worked for his employer for 26 weeks by the 15th week
before the baby is due and earn more than the Lower Earnings Limit (currently £75).
He must notify his employer of the date he wants to start
paternity leave in the 15th week before the baby is due.
Parental Leave
The Parental Leave Directive became law on 15
December 1999 - so just what is it?
Parental leave is leave taken by an employee to look after their child or make arrangements for the good of their child. Any employee who has one year's continuous employment will be entitled to parental leave if :-
For each qualifying child the "parent" is entitled to a maximum of 13 weeks unpaid leave. Their contract of employment will continue during the leave period and they will be entitled to return to their old job, or to a job that has at least the same status, terms and conditions as the old job.
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