When an Employee tells you she’s pregnant, what do you do?

from Silk Helix
Photograph of Jenefer Livings, Founder of Silk Helix Ltd
27 November 2021
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Firstly, congratulate her and don’t panic! It can feel scary as a small business owner, this might be about to have a big impact on your business. It’s also a potential opportunity and if she’s told you at the early stages when most do then you’ve got time to make plans.

The key is to understand her rights and entitlements so that you can do the right thing. Alongside this, keep the communication open so you both understand what is going on and can make plans together.

All pregnant employees are entitled to take paid time off work on medical advice to attend antenatal appointments. An employee can be asked to produce a medical certificate or appointment card, except in the case of their first request for time off.

You should not unreasonably refuse time off for antenatal care and cannot ask employees to work additional hours to make up for any time spent at antenatal appointments.

Protection against discrimination because of pregnancy and maternity

Pregnant women (including those on maternity leave) are entitled not to be subjected to any type of unfavourable treatment because of their pregnancy; if they are ill as a result of their pregnancy; or because they have, are taking, or have proposed to take, maternity leave. Such unfavourable treatment would amount to direct discrimination because of pregnancy and maternity and will always be unlawful.

Employees’ health and safety rights during pregnancy

Under health and safety legislation, if the job duties of a pregnant employee are in any way likely to cause them harm, steps must be taken to remove or reduce the risks. Specifically, consideration must be given to whether it is necessary to:

  • adjust the employee’s working hours if they are normally employed on night work and removal from night working has been recommended by their doctor
  • remove the employee from any job duties that might pose a risk to their health or safety
  • transfer the employee to an alternative job - which must be on terms and conditions not substantially less favourable than those of their normal job
  • if alternative work is not available or would not remove or reduce the risks to the employee, place them on paid suspension until the commencement of their maternity leave

Maternity leave

There are three types of maternity leave: ordinary, additional and compulsory.

Ordinary maternity leave and additional maternity leave

Irrespective of their length of service, all pregnant employees are entitled to take 26 weeks’ ordinary maternity leave, followed by 26 weeks’ additional maternity leave, and resume working afterwards. All pregnant employees are therefore entitled to a total period of up to 52 weeks’ maternity leave.

The employee can choose when to start their ordinary maternity leave, subject to two restrictions:

  • maternity leave cannot begin prior to the 11th week before the week that the baby is expected, unless the baby is born prematurely in which case maternity leave will begin the day after the baby is born
  • the start of ordinary maternity leave will be triggered automatically if the employee is absent from work wholly or partly on account of a pregnancy-related reason within four weeks of the week their baby is due

If an employee who has already provided notification of their maternity leave start date and subsequently changes their mind, they may do so by giving at least 28 days’ notice of the revised start date. This may be earlier or later than the date originally notified.

On receipt of an employee’s notification that they intend to take maternity leave, the employer must respond in writing within the next 28 days acknowledging the employee’s intentions and informing them of the date on which their additional maternity leave will end. This will be 52 weeks after the start of the employee’s maternity leave.

Compulsory maternity leave

An employee who has given birth must not be allowed to do any work for a period of two weeks from the date on which their baby was born. For employees who work in factories, the compulsory leave period is four weeks.

Shared parental leave

To take shared parental leave, a mother must first bring their maternity leave to an end. Provided that the correct notice is given, the untaken leave can then be shared with their partner either at the same time or in turns. The right to take maternity leave remains unchanged for mothers who do not take shared parental leave.

As well as curtailing maternity leave, both the mother and their partner must meet certain eligibility requirements relating to earnings, employment and responsibility for the child, to be eligible for shared parental leave. The total amount of shared parental leave available to be taken by the mother and their partner depends on the number of weeks of statutory maternity leave taken by the mother. The mother is still obliged to take two weeks’ (or four weeks for factory workers) compulsory maternity leave following childbirth.

Terms and conditions during maternity leave

During maternity leave all contractual benefits, except normal wages or salary, must continue.

Keeping-in-touch days

Employees on ordinary or additional - but not compulsory - maternity leave may do up to 10 days’ work under their contract of employment without bringing their maternity leave period to an end or losing their entitlement to statutory maternity pay. These days are known as “keeping-in-touch days”.

You may not, however, oblige employees to do any work during their maternity leave. Neither are employees entitled to be offered any work to do. The amount and type of work to be done is subject to the agreement of both parties, as is the amount of remuneration that the employee will be paid.

You should note that an employee who has opted to take shared parental leave is entitled to carry out up to 20 days’ work without bringing their shared parental leave to an end. These are known as “shared-parental-leave-in-touch” (SPLIT) days. A mother has 20 SPLIT days in addition to any keeping-in-touch days they take during maternity leave.

Reasonable contact

You may make reasonable contact with employees who are on maternity leave, for example to discuss the employee’s plans to return to work or whether they might wish to seek any changes to their working hours or pattern of work on their return.

Employees on maternity leave have the right to be consulted over a range of matters, for example any proposed redundancies or reorganisation, and to be given information about pay rises, bonuses and internal vacancies (including promotion opportunities).

Return to work after maternity leave

An employee who decides to return to work at the end of their additional maternity leave is not required to give notice of their return date. They may simply turn up to work in the usual way on the appropriate date. If, however, they wish to return to work early, including at the end of their ordinary maternity leave, they must give at least eight weeks’ notice of the intended early return date.

The effect of maternity leave on holiday entitlement

As stated above, the employee’s contract of employment remains in force during ordinary and additional maternity leave for all purposes except wages or salary. It follows that both statutory and contractual annual holiday entitlement continue to accrue in the normal way.

The basic four weeks of statutory annual holiday cannot be carried forward from one holiday year to the next - although the additional 1.6 weeks’ statutory holiday can be carried forward into the following year if there is an agreement to this effect. Another limitation is that buyout of statutory annual holiday is prohibited, except when an employee is leaving.

You, in consultation with the employee, should therefore review the timing of the employee’s holiday in relation to their forthcoming maternity leave. Maternity leave will usually span two holiday years and you should ensure that the employee is given the opportunity to use up all their holiday entitlement for the first of the two holiday years before commencing maternity leave. After their return to work during the next holiday year, the employee should be permitted to take their full 5.6 weeks of statutory annual leave in the usual way at agreed times during the year.

In the event that the employee’s period of maternity leave coincides with the employer’s holiday year to the extent that they are unable to take their full entitlement for the current holiday year before they go on maternity leave, you should discuss the position with the employee. The legal position is not entirely clear, but in practice many employers simply allow leave that has not been taken in these circumstances to carry over into the following holiday year.

Statutory maternity pay

An employee who is pregnant will be eligible to receive statutory maternity pay (SMP) for 39 weeks provided that:

  • they have been employed for a minimum of 26 weeks as at the end of the 15th week before the week their baby is due (which is known as the qualifying week)
  • they are still employed during that week, ie has not resigned or been dismissed before the beginning of that week
  • their average weekly earnings are equal to or greater than the lower earnings limit for national insurance contributions

SMP may be paid only once the employee begins their maternity leave. It can begin on any day of the week according to the date that the employee has notified as the start date of their maternity leave. If an employee chooses to return to work before the end of their maternity pay period they will forfeit any outstanding SMP that would otherwise have been due to them.

Where the employee works for up to 10 keeping-in-touch days during their maternity leave, SMP will be paid in the normal way. You will also need to agree with the employee in advance how much contractual payment they will receive for the work done.

SMP is payable whether or not the employee intends to return to work or actually returns to work after maternity leave.

SMP is treated as earnings and is therefore subject to PAYE and national insurance contributions in the normal way.

While this guide covers the basics, every situation has its own complexities so you should always seek professional advice.
We can help, so book a Free Advice Call .

Article last updated: 27 November 2021

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