How to Understand The Basics of Maternity Rights in Business

When a female employee becomes pregnant, who is left ‘holdin the baby’? The small business pressure groups would no doubt say, because of the rights for expectant mothers contained in the Employment Protection (Consolidation) Act 1978, that the employer is the one to suffer, but there is some evidence to dis­pute this claim. There has been a radical change in the law on maternity rights over the past decade, and there are now four main rights given to pregnant employees.

First, all expectant mothers have the right to take reasonable time off work, with pay, to receive ante-natal care on the advice of a doctor, midwife or health visitor. This provision seems to have caused few problems since it was introduced, with perhaps one exception. There is no definition to ‘ante-natal care’ in the legislation, so it is debatable whether attendance at relaxation classes would qualify for paid time off.

The second and third rights, which are the most contentious, apply only to women who, by the beginning of the eleventh week before the expected date of confinement, have been em­ployed for two years, working for at least 16 hours a week (or for five years if they work less than 16 but at least eight hours a week). These are the rights to be paid maternity pay and to come back to their old job after the baby is born.

The provisions on maternity pay are that women with the necessary qualifying service who remain employees up to the beginning of that eleventh week and give three weeks’ notice of the date they intend to stop work (in writing if their employer wants) should be paid six weeks’ maternity pay, which is nine-tenths of their normal week’s pay less the standard rate of ma­ternity allowance (currently £27.25 a week).

As the whole amount of the maternity pay, plus the employ­er’s National Insurance contributions, can be reclaimed from the government simply by completing form MP1 and sending it, together with a receipt signed by the employee to the Department of Employment, this right is not too onerous, even for smaller companies. It is, though, the right to maternity leave which can be most traumatic. Provided the woman gives at least three weeks’ notice in writing of the date she intends to stop working and of the fact that she intends to exercise her right to return to work, she can leave at any time from the beginning of he eleventh week before the expected date of confinement. She has the right to return to work at any time up to 29 weeks after the date of confinement (or the expected date if the actual date of birth is not known), provided she gives at least 21 days’ no­nce of the date on which she intends to resume.

The problems of keeping a job open for up to 40 weeks are obviously legion, but two changes were introduced in the 1980 Employment Act to mitigate these difficulties. The first is that, no earlier than seven weeks after the date of confinement, the ernployer can write to the woman asking if she still intends to return. If she does not reply within 14 days, or says she no longer wants to come back, she loses the right to return (but the letter must include a statement to this effect). This is a useful measure as many women reserve the right to return purely as a precautionary measure and, once they give birth, decide that they do not wish to resume work.

The second measure was designed specifically to help small firms, and provides that if there are no more than five people employed immediately before the woman begins her maternity leave, the right to come back to her old job only applies if it is ‘reasonably practicable’ for her employer to give her original job back to her or to offer her suitable alternative work. ‘Reasonably practicable’ is probable when the expense and in­convenience caused to the employer in holding the job open is not unduly onerous. This is not a particularly helpful defi­nition, but to date there has been no reported case law on this point, although it has been law for some five years – perhaps an indication of its usefulness!

The final right given to expectant mothers is that it is auto­matically unfair to dismiss them on grounds related to their pregnancy unless it makes them incapable of carrying out their work adequately or, because of the pregnancy, their continued employment would be in contravention of a legal requirement. While this provision applies only to those women with the necessary qualifying service to claim unfair dismissal, it is possible that a tribunal would view dismissal on grounds of pregnancy as sex discrimination, and no qualifying service is necessary before a claim of this type is made to an industrial tribunal.

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About the Author: Marie Mayle is a contributor to the MegaHowTo team, writer, and entrepreneur based in California USA. She holds a degree in Business Administration. She loves to write about business and finance issues and how to tackle them.

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