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23-January-2007
How to manage maternity in the workplace
When a woman finds out she is pregnant, she is often over the moon.
When her employer finds out, the feeling might not be mutual. Small to medium-sized businesses in particular may be daunted at the prospect of losing a member of staff for an indefinite period of maternity leave and also overwhelmed at the amount of regulation that applies to working parents.
This article is intended to demystify the situation and explain the employer’s key obligations and the employee’s rights.
By the 15th week before the baby is due, the employee must advise you that she is pregnant.
She needs to tell you when the baby is due and when she wants her maternity leave and maternity pay to start. She may choose to start her maternity leave as early as 11 weeks before the baby is due. She isn’t obliged to inform you in writing but you are entitled to ask her to do so. She should also provide you with a copy of her MATB1 certificate (usually available from about 21 weeks from her midwife).
Within 28 days of being notified of the above information, you must write to your employee and advise her when she would be expected back at work (this currently depends on her length of service; employees with 26 weeks' service at the start of the 14th week before the expected week of childbirth qualify for six months' additional maternity leave as well as the first 6 months’ ordinary maternity leave). You should also calculate whether she is entitled to statutory maternity pay and, if not, advise her of this fact and give her form SMP1 to complete which will assist her in claiming maternity allowance instead.
The rate of SMP is 90% of a woman’s average weekly earnings for the first six weeks, followed by the lesser of a flat rate of (currently) £108.85 a week and 90% of her average weekly earnings for the remaining weeks (the flat rate is subject to review every April). Employers who are liable to pay SMP may reclaim 92% of the amount they pay from Her Majesty’s Revenue and Customs and businesses may be eligible to claim back 104.5% of the money they pay out in SMP if their total National Insurance Liability in the previous tax year was £45,000 or less.
As soon as you are aware that your employee is pregnant, you must allow her paid time off to attend ante-natal appointments. From the second appointment onwards, you are entitled to ask for evidence of such appointments.
You must also undertake a health and safety risk assessment in order to identify any risks to the woman or her unborn child. If the assessment reveals any risk to the pregnant employee, or to the baby, you must follow a series of steps to ensure that she is not exposed to the risk or damaged by it. If the risk cannot be avoided, the employee's working conditions and / or hours of work should be altered. Where that is not feasible, she must be removed from that job and given suitable alternative work (if there is any). As a last resort she may have to be suspended on maternity grounds – on full pay.
You may not dismiss a woman (including selecting her role for redundancy) because she is pregnant or treat her less favourably for that reason or because she plans to take or is on maternity leave. If a redundancy situation arises whilst a woman is on maternity leave, she is afforded special protection by way of preferential treatment.
Furthermore women who return to work on expiry of ordinary maternity leave are entitled to return to the same job and on the same terms and conditions as before her leave began. A woman who returns to work after taking additional maternity leave is entitled to return to the job she had before – save where reinstatement in the old job is not reasonably practicable, in which case she should be offered a role that is both suitable for her and appropriate for her to do in the circumstances.
If a woman is entitled to ordinary maternity leave and returns at the end of that 6 month period – or if she is entitled to additional maternity leave and returns at the end of the 12 month absence, she is entitled to return to work at that time without having a duty to notify you. If she wants to come back early, she must give you (currently) 28 days’ notice.
Just to confuse matters, however, a raft of changes was introduced in October by virtue of the Work and Families Act 2006.
In summary, the most significant of those changes (which apply to women whose expected week of childbirth (EWC) (or date of adoption) falls on or after 1 April 2007) are as follows:
ENDS
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