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Maternity issues and SMP1. Am I allowed to ask a woman at a job interview whether she is or intends to become pregnant? 2. When can an employee start ordinary maternity leave? 3. A new employee has just announced that she is pregnant. Is she entitled to maternity leave? 5. When do I have to pay statutory maternity pay (SMP)? 6. A new employee has just announced she is pregnant. Surely we can just dismiss her? 7. We have a part-timer who has just announced that she is pregnant. What is she entitled to? 10. Do I have to put up with a pregnant employee who keeps on disappearing for maternity appointments? 12. How much notice of return does a new mother have to give, and can we postpone her return? 14. An employee wants to come back on a part-time basis. This does not suit us. What can we do? 15. How much is statutory maternity pay? 17. What do I need to know about making someone redundant during pregnancy or maternity leave? 20. Do I have any obligations in respect of a pregnant employee's health and safety? 21. We have a pregnant part-timer, who earns about £60 a week. What is she entitled to? 22. What evidence do I need of the date the baby is due, before I can reclaim SMP? 1. Am I allowed to ask a woman at a job interview whether she is or intends to become pregnant? There is no ban on questions about pregnancy, but avoid them if possible, as they could be construed as evidence that you intend to discriminate (see Discrimination). Questions about childcare commitments should also be avoided, unless you can show that they are relevant to the job requirements, and you ensure that you ask both men and women the same question. 2. When can an employee start ordinary maternity leave? A pregnant employee can start ordinary maternity leave any time after the beginning of the 11th week before the week in which the baby is due. 3. A new employee has just announced that she is pregnant. Is she entitled to maternity leave? She will be entitled to 26 weeks' ordinary maternity leave, irrespective of her length of service, provided that she gives you proper notice. In most cases , employees will also be entitled to maternity pay (see question 5) or maternity allowance (see question 21) during this period. In order to qualify for ordinary maternity leave, your employee must notify you by the end of the 15th week before the week in which the baby is due (or if that is not reasonably practicable, as soon as is reasonably practicable) of: · her pregnancy; 4. A long-serving employee has just announced that she is pregnant. How much maternity leave is she entitled to? Provided that she gives you proper notice (see question 3), she will be entitled to ordinary maternity leave. If she has 26 weeks' continuous service at the beginning of the 14th week before the week in which the baby is due, she will also be entitled to additional maternity leave. Additional maternity leave starts at the end of ordinary maternity leave and runs out 26 weeks later. So an employee with 26 weeks' continuous service at the beginning of
the 14th week before the expected week of childbirth can be on maternity
leave for up to 52 weeks. 5. When do I have to pay statutory maternity pay (SMP)? Statutory maternity pay must be paid to any pregnant employee, provided that she: " has 26 weeks' continuous service by the 15th week before the week in which the baby is due; " has average weekly earnings of £84.00 per week for the eight weeks up to and including the 15th week before the week in which the baby is due; " has produced medical evidence of the week in which the baby is due; and " has given 28 days' notice of the date on which she wishes to start SMP. If an employee does not qualify for SMP, she may well qualify for maternity
allowance. 6. A new employee has just announced she is pregnant. Surely we can just dismiss her? No. As a general rule, if you dismiss an employee for a reason connected with pregnancy (or maternity leave or parental leave), you will be liable for unfair dismissal as well as sex discrimination. 7. We have a part-timer who has just announced that she is pregnant. What is she entitled to? To be treated no less favourably than a full-timer. Like a full-timer, she has the right to return to her job after maternity leave. 8. We can't function without someone doing the job of a pregnant employee. Can we take on a replacement? Yes - but make it plain that you are recruiting her (or him) to provide maternity cover, and will employ her on a temporary or fixed term contract. If the maternity cover lasts for one year or more, the replacement will acquire the right not to be unfairly dismissed. In those circumstances, if there is suitable alternative employment available and you fail to offer it to the replacement, you may be liable for unfair dismissal. 9. The replacement has turned out to be much better than the woman she replaced. Can we keep her and move the new mother sideways? If the new mother is taking ordinary maternity leave, you must keep her original job open for her. If she is taking additional maternity leave, she has the right to come back to her original job or, if that is not reasonably practicable, to a suitable alternative job. You could have a hard job demonstrating that it was not reasonably practicable to reinstate her. The key point is that the new mother has a statutory right to return to her old job, and this outweighs any consideration about the relative merits of the replacement. However, the new mother also has the right to ask for part-time work, which might solve your problem. 10. Do I have to put up with a pregnant employee who keeps on disappearing for maternity appointments? Yes. A pregnant employee is entitled to paid time off for ante-natal
care, which may include parenting and relaxation classes. You could, however,
ask for evidence of the appointments. 11. I've got a pregnant employee who seems to be permanently sick. How much time off do I have to give her? You should treat her in the same way as you would treat any other sick employee, and allow her to take sick leave in accordance with your sickness procedure. Is her illness pregnancy-related? If so, avoid taking any unfavourable action against her during her pregnancy and maternity leave, on account of her illness. Otherwise, you leave yourself open to a claim for sex discrimination and unfair dismissal. If the employee is absent from work wholly or partly because of pregnancy,
during the four weeks before the week in which the baby is due, the ordinary
maternity leave period will start automatically, even if the employee
intended it to start at a later date. 12. How much notice of return does a new mother have to give, and can we postpone her return? She does not have to give you any notice at all if she intends to return to work at the end of her maternity leave. If she intends to return before that, she should give you at least 28 days' notice. If she fails to give adequate notice, you can postpone her return to give yourselves 28 days' notice. You cannot postpone her return to a date later than the end of her ordinary or additional maternity leave, except with her agreement. 13. An employee who has had a baby said she was coming back a month ago, but keeps on sending sick notes instead. What can we do? The employee does not lose her right to return to work. Therefore, you should treat her in the same way as any other employee on sick leave, including paying her normal sick pay entitlement, whether contractual sick pay or Statutory Sick Pay (see Sickness issues and SSP). If the sickness continues you may eventually want to consider dismissing her, in which case you will have to implement your full dismissal procedures (see Dismissing employees). In assessing her sickness record, you must ignore any periods of sick leave for a pregnancy-related illness during her pregnancy and maternity leave. Alternatively, you and the employee could agree to postpone her date of return from maternity leave. 14. An employee wants to come back on a part-time basis. This does not suit us. What can we do? You are obliged to give the request careful consideration. If you decide not to grant it, you must provide the employee with good business reasons for your decision. You must be able to show that these reasons are objectively justified, in order to avoid liability for sex discrimination. You should try to be flexible in your approach, as far as possible. The fact that the job has not been done on a part-time basis before will not in itself justify refusing the employee's request. Parents of children under six or disabled children under 18 now have the right to apply to work flexibly, provided that they have the qualifying length of service (26 weeks) and have not made another application within the preceding 12 months. Employers must deal with such applications under a specific procedure. If you turn down a request from a qualifying employee, he (or she) may
make a claim against you in an Employment Tribunal on the grounds that
you have failed to comply with that procedure, or that your decision to
reject the application for flexible working is based on incorrect facts. 15. How much is statutory maternity pay? Statutory maternity pay ('SMP') is currently payable for a period of up to 26 weeks. There are two rates of SMP. For the first 6 weeks, SMP is paid at the higher rate, this is 90 % of the employee's normal weekly earnings. Following a recent case at the European Court of Justice, 'normal weekly earnings' will have to include any pay rises made up to the end of her maternity leave, although the government has yet to decide how the law will be changed to implement this. For the remaining 20 weeks, SMP is paid at the lower rate, now £108.85 a week, or 90 % of the woman's average earnings if this is less than £108.85 per week. The government is planning to extend maternity pay to nine months by
April 2007, and subsequently to twelve months by the end of the next Parliament.
It is also proposing to introduce a new right for mothers to transfer
a proportion of their maternity leave and pay to fathers. You, as employer, pay it. But you can recover 92 % of the amount of SMP paid by deducting that amount from your contributions payments to the Inland Revenue. If you are a small employer, you may recover 100 % of SMP paid plus an additional 4.5 % compensation. You qualify as a small employer if your NI contributions amount to not more than £45,000. 17. What do I need to know about making someone redundant during pregnancy or maternity leave? Don't do it, if you can possibly avoid it. Unless you are closing down
a whole site, or a whole section, you may find it difficult to rebut the
suspicion that you have selected this employee for redundancy because
she is pregnant, which could leave you open to penalties for unfair dismissal
and sex discrimination. 18. We have taken away an employee's company car while she is on ordinary maternity leave. She says this is unlawful. Is it? Yes. During the ordinary maternity leave period, she is entitled to all of her normal terms and conditions of employment, except 'remuneration'. However, an employee on additional maternity leave is entitled to much
more limited terms and conditions of employment, unless her contract of
employment provides otherwise. She would not be entitled to retain her
company car during additional maternity leave, unless her contract of
employment contained a provision to that effect. 19. What do we have to give mothers (and fathers) by way of parental leave, and do we have to pay them for it? Fathers are now (since April 2003) entitled to up to two weeks' paid paternity leave at or around the birth of the child, for the purpose of caring for the child or supporting the mother. They must have at least 26 weeks' service with you by the 15th week before the expected week of childbirth. They must be the biological father of the child or the husband or partner of the child's mother. They must also have, or expect to have, responsibility for bringing up the child. Any employee who has at least one year's service with an employer is also entitled to take up to 13 weeks' unpaid parental leave for the purpose of caring for a child. Parental leave may be taken until the child's 5th birthday or, in the case of an adopted child, until five years after the placement of the child. In the case of a disabled child, an employee may take up to 18 weeks' parental leave at any time until the child's 18th birthday. Entitlement to parental leave is in respect of employment with all employers. So when you are taking on new employees, it is advisable to check with their previous employers as to how much parental leave, if any, they have taken. Parental leave may be taken in blocks or multiples of one week, up to
a maximum of four weeks per year. 20. Do I have any obligations in respect of a pregnant employee's health and safety? Yes. You are required to assess the health and safety risks posed to pregnant workers, as well as to workers who have recently given birth and who are breastfeeding. If the risk assessment reveals that the health or safety of the employee
is at risk, you must take all reasonable measures to avoid the risk. If
there is still a risk, you must alter the employee's working hours or
conditions of work, if this would remove the risk, and it is reasonable
to do so. Otherwise, you must suspend the employee on full pay for as
long as is necessary to protect her health or safety, or that of her baby. 21. We have a pregnant part-timer, who earns about £60 a week. What is she entitled to? If she fulfils all the requirements set out above, apart from the earnings level, she will qualify for maternity allowance, which is payable for up to 26 weeks at a standard weekly rate of £108.85 or 90% of average weekly earnings if less than £108.85. 22. What evidence do I need of the date the baby is due, before I can reclaim SMP? You need: · a completed form MAT B1 from your employee; or This letter must show: · the employee's name; Although these FAQs highlight some key issues relating to employment law, it should not be considered comprehensive and is not a substitute for seeking professional advice on a specific issue. Disclaimer Although we have made every effort to ensure that the information contained in these FAQs is accurate, Business Hotline Publications and the named experts disclaim any liability for any errors or omissions. © Business Hotline Publications Ltd |
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