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By David Sillitoe

Jan 25th, 2019

A look at the employment rights of new and expectant mothers

The government has launched a consultation regarding its proposal to extend legal protection against redundancy for pregnant women for six months after they return to work. But what are the employment rights of new and expectant mothers?

The issue

Business Department research found that one in nine women had been dismissed when they returned to work after having a child, or were treated so badly they felt forced to leave.

A survey carried out by the Equality and Human Rights Commission found that 77% of mothers surveyed said that they had had a negative and possibly discriminatory experience during or after their pregnancy or maternity leave, and 25% of employers thought it was reasonable to ask women at interview whether they intend to have children.

Maternity Leave and Pay

All employees must take a minimum of two weeks' maternity leave (four weeks for factory workers).

Ordinary Maternity Leave (OML) is a period of 26 weeks' leave available to all employees, regardless of length of service.

Additional Maternity Leave follows immediately after the end of OML and lasts up to a further 26 weeks, giving a total entitlement of 52 weeks' Statutory Maternity Leave.

An employee will be entitled to Statutory Maternity Pay (SMP) where she has 26 weeks' continuous employment up to and including the 15th week before the Expected Week of Childbirth, and average earnings above a certain level.

SMP is payable for 39 weeks at the "earnings-related rate" (90% of average earnings) for the first six weeks, and the "prescribed rate" (or earnings-related rate if lower) for the remainder of the period.

Some employees will have more favourable contractual entitlements.

Discrimination against new and expectant mothers

Pregnancy and maternity is one of nine "protected characteristics" covered by Equality Act 2010.

Under section 18, pregnancy and maternity discrimination occurs where an employer treats a woman unfavourably: during the protected period, because of her pregnancy or because of an illness suffered by her as a result of her pregnancy; because she is on compulsory maternity leave; or because she is exercising or seeking to exercise, or has exercised or sought to exercise, the right to ordinary or additional maternity leave.

Forgetting about a woman because she is on maternity leave and, for example, therefore not informing her of a promotion opportunity would amount to a breach of section 18.

Harassment may also come within section 18, so pregnancy and maternity is not one of the characteristics protected by the harassment provisions at section 26. However, harassment linked to pregnancy may amount to harassment related to gender or sexual harassment.

One provision that often catches employers out is Regulation 10 Maternity and Parental Leave Regulations 1999; this provides that, if a redundancy situation arises during an employee's maternity leave and it is not practicable by reason of redundancy for the employer to continue to employ her under her existing contract, the employee is entitled to be offered a suitable alternative vacancy (where one is available).

If the employer does not comply with this requirement, the employee will have a claim for automatically unfair dismissal under section 99 Employment Rights Act 1996.

What Can Employers Do?

It is beyond the scope of this article to consider all of the issues that can arise when dealing with an employee who is pregnant or on maternity leave. Advice should be sought if an employer is unsure of their obligations in a given situation.

However, providing training to managers on equality rights can help to create an environment where discrimination is unlikely to occur.

All organisations should also have a Policy that covers pregnancy and maternity, even if only as part of the organisation’s general Equality Policy.

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