Are you pregnant and wondering what to do regarding your employer? What are your rights? See below for an explanation of entitlement of maternity leave.
Here is what you need to know:
The protected maternity period begins when a woman becomes pregnant and ends:
- If she has the right to OML and AML, at the end of the AML period or (if earlier) when she returns to work after the pregnancy.
- If she does not have that right, at the end of the period of two weeks beginning with the end of the pregnancy.
Compulsory maternity leave
All employees must take a minimum of two weeks’ maternity leave starting with the day on which childbirth occurs. Note that an employer will be guilty of a criminal offence if it allows an employee to work during compulsory maternity leave.
Ordinary maternity leave
OML is a period of 26 weeks’ leave available to all employees, regardless of length of service, who give birth and comply with the notification conditions. It applies only to employees, whether they are full time or part-time, fixed-term or permanent, and is not available to the self-employed or those who come within the statutory definition of worker.
Additional maternity leave
AML follows immediately after the end of OML and lasts for up to a further 26 weeks, giving a total entitlement of 52 weeks’ statutory maternity leave, and is also available to all employees regardless of their length of service (regulation 4, MPL Regulations, as amended by regulations 2 and 5, MPL Amendment Regulations).
The crucial importance of notification:
For maternity leave purposes, a pregnant employee is not required to inform her employer of her pregnancy until the 15th week before the expected week of childbirth (EWC). However, she will not be able to benefit from rights such as the entitlement to paid time off for antenatal care, risk assessments and the statutory protection on account of her pregnancy from discrimination or dismissal until her employer is made aware that she is pregnant. Therefore, from the employee’s point of view, it might be advisable to inform her employer of her pregnancy earlier if possible.
To qualify for OML, an employee must comply with the notification provisions set out in the MPL Regulations. These are that she must notify her employer no later than the end of the 15th week before the EWC (or, if that is not reasonably practicable, as soon as is reasonably practicable) of:
- The fact that she is pregnant.
- The EWC.
- The date when she intends her OML to start, which must be a date no earlier than the beginning of the 11th week before the EWC.
This notification need not be in writing unless the employer requests this. However, it is advisable for an employee to give notice in writing of at least the fact of her pregnancy. Without such written notice, the employer’s extra health and safety duties are not triggered.
An employee who becomes pregnant while on maternity leave has to notify her employer of the pregnancy in the normal way (that is, no later than the end of the 15th week before EWC). It is possible that such an employee would not return to work at the end of the first maternity leave but could instead go straight into the second maternity leave period.
MAT B1 certificate
If requested by the employer, the employee must produce a certificate from a doctor or midwife (a MAT B1) confirming her EWC (regulation 4(1)(b), MPL Regulations).
Failure to notify employer in time
If the employee gives notification late and does not have the excuse of it being “not reasonably practicable”, then strictly speaking she has no statutory right to compulsory maternity leave, OML, AML, or the protections that apply during those periods by virtue of the ERA 1996 or MPL Regulatiuons. Nonetheless, given the importance of statutory maternity rights, it seems likely that tribunals would apply a fairly wide interpretation in favour of the employee.
In any case, she will still have the benefit of:
- The right not to suffer pregnancy or maternity discrimination during the “protected period”.
- The right not to suffer direct or indirect sex discrimination.
- The right not to suffer detriment or be dismissed because of pregnancy.
- The right not to be unfairly dismissed on ordinary principles (provided she has sufficient service).
- The right to SMP, provided she has given at least 28 days’ notice of her intention to take maternity leave.
- The right to paid time off for antenatal appointments.
- Health and safety rights including alternative work or paid maternity suspension if applicable.
- Any rights set out in her contract or implied by custom and practice.
Once the employer has received notice of the date the employee has chosen to start her maternity leave, it has 28 days to notify her of the date on which her maternity leave will end (regulation 7(6) and (7)(a), MPL Regulations). The end of maternity leave will be 52 weeks from the start of maternity leave.
- The employee will have protection against detriment and/or dismissal for failure to return on time if:
- the employer gave her no notice at allof the end date and the employee reasonably believed that her maternity leave had not ended; or
- the employer gave her less than 28 days’ noticeof the end date and it was not reasonably practicable for her to return on that date (regulation 19(2)(ee)(i) and (ii), MPL Regulations).
- If the employee wishes to return to work early from her leave, she is not obliged to give the requisite eight weeks’ notice of this if her employer has not notified her of the end date within the timescale set out above (regulation 11(5), MPL Regulations).
If you have any issues or questions in relation to the above then please call us on 02085791345.