Maternity Leave; get it right or pay the price
DENTAL BULLETIN, ISSUE 53
In this article we set out the key obligations placed on an employer for its pregnant employees so you can you understand your duties to them. You can offer more than the statutory requirements we have set out, and by having greater benefits you are likely to attract and retain better staff. However, you cannot offer less than the statutory minimums detailed below.
Before we set out the rights, it is important to understand the basic concepts, namely:
- Protected period: The period in which an employee has protection. This starts from the moment a woman becomes pregnant and ends once maternity leave is concluded. What maternity leave an employee is entitled to is discussed below.
- Expected week of Childbirth (EWC): This is the week, measured from Sunday to Saturday, in which childbirth is expected to occur.
- IVF treatment: When a woman is undergoing IVF treatment, the protected period starts when fertilised ova are implanted. If this fails, the protected period ends 2 weeks after this.
Rights of those who are Pregnant
Once an employee has informed you she is pregnant, she will be entitled to certain rights and protection. She does not need to inform you of the pregnancy until the 15th week before EWC. Once you are aware an employee is pregnant you must;
- Ensure you comply with health and safety requirements. This involves carrying out risk assessments to identity any potential risks to the mother and the unborn child; making adjustments to the role if there are risks; if adjustments cannot be made, to offer suitable alternative work; where there is no suitable alternative work to suspend the employee on full pay. The Health and Safety Executive has produced this handy flowchart to help employers with such risk assessments.
- Allow the employee paid time off to attend antenatal classes. This right is available to all employees regardless of hours and length of service. You may refuse to allow the time off if such a refusal is reasonable. Unfortunately, no guidance has been given on what is ‘reasonable’. However, given the nature of a dental practice, namely you have patients booked to attend, if a dental nurse gives you short notice of a non-urgent appointment, it is likely that such refusal will be reasonable.
- If an employee is treated unfavourably due to a pregnancy related illness, this could constitute unlawful discrimination and if the employee is dismissed, that could amount to an automatic unfair dismissal. This means that any pregnancy related sickness absence should be disregarded when looking at things like sickness bonuses or when a sickness absence policy is triggered.
- During maternity leave an employee’s holiday will continue to accrue. Holiday cannot be taken during maternity leave, so it would be wise for you to consider this with the employee at an early stage so you can make arrangements for cover to ensure you do not have to cancel patient appointments. It may be the case that the holiday spans over two holiday years and as the employee cannot take the leave during her maternity any accrued but untaken holiday should roll over to the next holiday year.
All employees must take the minimum two week compulsory maternity leave.
In order to qualify for ordinary maternity leave, namely 26 weeks of leave, the employee must notify the employer no later than the 15th week before EWC that she is pregnant, her EWC and the date she intends to start her maternity leave. This cannot be before the beginning of the 11th week before the EWC.
Once this is received you have 28 days to notify the employee of when her maternity leave will end. Employees are entitled to an additional 26 weeks maternity leave on top of the ordinary maternity leave, giving a total of 52 weeks maternity leave available to the employee and it is this date that you should calculate as the end of maternity leave.
During maternity leave, you must:
- Pay the employee statutory maternity pay for up to 39 weeks subject to the employee being eligible for the same.
- Ensure the employee benefits from the terms and conditions of employment which would have applied if she had not been absent, for example health insurance. This does not apply to remuneration.
- Allow the employee to attend work for up to 10 paid keeping in touch days (KIT) and have reasonable contact with the employee to update them on work related issues. You cannot insist that the employee attends work and the employee does not have to use her KIT days. In terms of having reasonable contact with the employee, we would recommend this includes and practice updates or training. If a dental nurse is off you want to make sure they are up to speed with any changes on their return.
Returning from Maternity Leave
Unless the employee states otherwise, the return date will be the date you provided to the employee when she notified you of her pregnancy, namely 52 weeks from the start of the maternity leave period. If an employee wishes to return earlier than this she must give you at least 8 weeks’ notice of her intended date for return. You can agree a shorter period if you wish but you have no obligation to do so. You cannot delay the employee’s return beyond the 8 weeks, or the full 52 weeks, whichever comes first. The employee can also seek to change the return date once she has notified you of this in certain circumstances.
Depending on whether the employee has taken ordinary maternity leave (26 weeks) or additional maternity leave (an additional 26 weeks) her rights when she returns from leave will be slightly different.
- Ordinary maternity leave. The employee is entitled to return to the same job in which she was employed before her absence began and her terms of employment must be the same, or no less favourable. Any pay rises, or other such benefits, given to staff must also be given to the returning employee.
- Additional maternity leave. The employee has the same rights as above unless it is not reasonable practicable for the employer to permit her to return to the same role. This would apply for example where there has been a re-organisation.
Requests for flexible working
Many employees will make a request for flexible working before returning from maternity leave. No employee has a right to flexible hours; the right is only to make a request for flexible working, subject to the employee having been employed for 26 weeks or more. You should have a flexible working policy in place that complies with the flexible working legislation and this will guide you through the process, including when you can reject such a request.
However, even if you follow the flexible working request procedures, you should be aware an employee could still issue a claim of indirect sex discrimination against you if you reject a flexible working request. In order to defend such a claim you would need to show that there was objective justification for the requirement for the employee to work full-time. Case law has confirmed cost alone is not sufficient grounds to objectively justify indirect discrimination. If you have any concerns about this you should seek legal advice, as this is a complex area of law and the bar the tribunals set is relatively high.
Self-employed and workers
We have not dealt with dental associates in this article, as self-employed contractors are not entitled to the rights listed above. This would apply to any dental care professional, such as a hygienist or therapist, engaged on a self-employed contract. The rights are only for employees. This does not mean they have no protection; they would be protected against discrimination on the grounds of sex, pregnancy and maternity.
We have stated in previous articles that given the recent ‘gig economy’ cases dental associates and other dental care professionals are likely to be found to be workers. However, workers are also not afforded the rights listed in this article, only protection against discrimination.
If you need any advice or assistance in respect of a pregnant employee, please contact Laura Pearce on 0207 388 1658 or email her at email@example.com
Laura Pearce, Senior Solicitor