1.
Can I Take Maternity Leave?
· All women employees are entitled to 26 weeks Ordinary Maternity Leave
(OML) whatever their length of service or hours. You have the right to return
to exactly the same job after your OML.
· If you have 26 week’s service (at the 14th week before the
expected week of childbirth), you will also be entitled to Additional Maternity Leave (AML).
This extends maternity leave for a further 26 weeks starting from the end of OML. The total period of maternity leave
is one year.
· Your leave can start at any time after the 11th week before the expected
week of childbirth. It is up to you to decide when you start your maternity leave,
so long as the start date is after the 11th week before your due date. The
latest maternity leave can start is the date your baby is born. You count your 26 weeks from the date you start your leave.
To take maternity leave you should:
Ø
Notify your employer (a) that you are
pregnant (b) the expected week of childbirth and (c) the date on which you intend leave to start, before the end of the 15th
week before your due date. Your employer can ask you to put this information in writing.
Ø You can amend the intended start date of your leave with at least
28 days notice where reasonably practicable.
Ø Your employer must inform you in writing of your leave period and
expected week of return within 28 days of your providing notice. If you are entitled
to AML, you employer should assume you will take it and give you a return date that is 52 weeks from the date you intend to
start maternity leave.
Ø
If no earlier than fourteen weeks before
the expected week of childbirth, your employer asks, you must supply a medical certificate (Mat B1) stating the expected week
of childbirth. If you do not intend to return, but still qualify for the pay,
the Mat B1 need not be given until after what would have been the end of the 3rd week of OML.
You can get the Mat B1 from your midwife after the 20th week of pregnancy.
· You need not give notice of return to work from OML or AML, unless
you wish to return earlier than your full leave entitlement. In that case, you have to give 28 days notice of the revised
date of your return. If you do not give 28 days notice, your employer can postpone
your return until 28 days notice has passed.
· OML includes 2 weeks Compulsory Maternity Leave (CML) after childbirth
(4 weeks if you work in a factory). CML means you cannot do any work or even
be contacted about work though your employer can contact you, for example, to offer congratulations etc.
· There are two instances where maternity leave is automatically triggered
Ø where your baby is born before you are due to start leave and
Ø where you are absent from work for a pregnancy related reason (e.g.
pregnancy related sickness or a possibly a health and safety suspension) after the 4th week before the expected week of childbirth.
If either of these occurs, the notice provisions are adjusted. You must,
nevertheless, tell the employer as soon as you can.
Complaints about failure to allow you to take or return from maternity leave should be made to an Employment Tribunal. A three months time limit for making a complaint generally applies. Before making
a claim you must put your grievance in writing to your employer. The time limit
for bringing a claim will then be extended by another three months.
If you are dismissed because you are pregnant, have taken maternity leave or for another reason related to your pregnancy,
you can make a claim for unfair dismissal and sex discrimination, even if you have not worked for your employer for a full
year (see 19 Am I Protected From Dismissal or Detriment During Maternity).
2.
Can I Get Maternity Pay?
Separate
from your rights to maternity leave you may have a right to either Statutory Maternity Pay (SMP) or Maternity Allowance (MA).
Your employer pays SMP. The Jobcentre Plus pays MA. Check whether your employer offers contractual maternity pay over and
above, and if so whether there are any conditions, for example returning to work for a minimum period of time, attached.
Statutory Maternity Pay (SMP) - To qualify for SMP you
must have;
· Worked for your employer for at least 26 weeks prior to the 15th
week before your baby is due;
· Had average earnings of at least £82 a week in the 8 weeks (or 2
months if you are paid monthly) prior to the 15th week before your due date;
· Given your employer evidence of the date your baby is due (usually
your Mat B1)
· Given your employer at least 28 days notice that you want to claim
SMP (most women give notice for maternity leave and pay at the same time i.e. at the latest by the 15th week before
your due date)
· stopped work.
If
you satisfy these conditions you will get;
· 6 weeks pay at 90% of your average earnings and
· 20 weeks pay at £106 per week or 90% of your average earnings, whichever is the lower sum
Your SMP will normally start on the Sunday after you begin your maternity leave and continue for 26 weeks (the maternity
pay period). If you return to work before the end of the maternity pay period
your SMP will stop and you will lose any outstanding amount.
You get SMP regardless of whether or not you intend to go back to work. SMP is paid by your employer, who claims
most of it back from the Inland Revenue. You have to pay tax and national insurance on your SMP. It can be offset against
any other entitlements under your contract, except holiday pay. If your employer does not pay you SMP, you should be given
form SMP1 explaining why you are not being paid. You can query this with your local Inland Revenue office.
Maternity Allowance (MA) – If you do not qualify for SMP (maybe because you have not worked
for your employer long enough or your earnings are too low) you may qualify for MA instead. You should qualify for MA if:
· You meet all of the conditions for SMP but have not been working
for your employer for 26 weeks, but have worked for at least 26 weeks out of the 66 weeks prior to the date when your baby
is due (even if this was with different employers) you can get MA at £106 a week, or 90% of your average earnings, whichever is the lower sum.
· Your earnings are too low to get SMP (less than an average of £82
a week) but are an average of at least £30 a week from one or more jobs, you can get MA at 90% of your average earnings.
To
claim MA send form MA1 (obtainable from your local Jobcentre Plus office or ante natal clinics) with your maternity certificate
form MAT B1 to your local Jobcentre Plus office. If you are an employee you will
also need to provide form SMP1 which you should get from your employer.
If
you are on a low income you may be able to claim a Sure Start Maternity Grant of £500. Speak to your midwife or contact your
local Jobcentre Plus for more information.
THESE ARE ONLY THE BASIC STATUTORY RIGHTS. YOUR EMPLOYER MAY PROVIDE HIGHER PAYMENTS. IF NOT, NEGOTIATE!
3. Am
I Protected From Dismissal Or Detriment During Maternity?
· All women employees,
whether temporary or permanent and regardless of hours worked or length of service, are automatically protected from dismissal,
detriment and selection for redundancy solely or mainly on the grounds of being pregnant, having given birth or taken maternity
leave. There is no option for employers to justify the treatment. Any dismissal connected to a woman’s pregnancy, childbirth or maternity will generally also be discriminatory. So an employer cannot:
Ø Dismiss you or select you for redundancy
(unless there is a genuine redundancy situation)
Ø Dismiss you because of some statutory
restriction on employment or on grounds of health and safety. Instead, the employer
should temporarily transfer or suspend you. If transferred you will take on the
terms and conditions of the new job (which should not be substantially less favourable).
Suspension will be on full pay (see also 21. Am I Entitled to Ante-Natal Care And/Or Health And Safety Protection)
Ø Refuse to allow you to return to
your job after your maternity leave (unless there has been genuine redundancy or reorganisation).
Ø Dismiss you for exercising a statutory
right such as time off for ante-natal care
Ø
Subject you to any detriment e.g. denial
of promotion, training opportunities, facilities
Ø Use any pregnancy-related sickness
as grounds for triggering disciplinary proceedings, dismissing you or making you redundant
Ø Dismiss you if you are sick at the
end of maternity leave and cannot physically return on the appointed day. Your
maternity leave will end and you will then be on sick leave. You should provide your employer with a medical certificate and
comply with any other requirements of the sickness policy. If your employer normally provides sick pay this should be paid
to you. If not you may be entitled to statutory sickness benefits – contact
your Jobcentre Plus for more information.
· You generally have the right to return to your same
job following maternity leave. There are three exceptions.
Ø
Where your employer has 5 or less employees
and you have taken additional maternity leave, if it is not reasonably practicable to allow you to return, it will not be
automatically unfair for your employer to dismiss you.
Ø
If there is a genuine redundancy and there
is no suitable alternative vacancy. If you have at least two years service will be entitled to redundancy pay. Your employer
should consult with you about potential redundancies even if you are on maternity leave.
Ø
If there is a genuine redundancy which
occurs during the leave period and there is a suitable alternative vacancy, your employer should offer this to you. If you
refuse, your employer can dismiss you and you may lose the right to redundancy pay.
· If you are dismissed, the employer must provide you with a written
statement of reasons for dismissal. This statement is admissible in evidence.
Complaints about dismissal, redundancy and detriment can be made to Employment Tribunals, generally
within 3 months of the action. Both unfair dismissal and sex discrimination should
be claimed. If your employer does not comply with the statutory dismissal procedures before dismissing you, any dismissal
will be automatically unfair.
4. Can I Return To My Job After Maternity Leave With
All My Service Rights?
· You generally have the right to return to exactly the
same job after your maternity leave. However the right to return is slightly
different depending on whether you are returning after Ordinary Maternity Leave (OML) or after Additional Maternity Leave
(AML).
Ø You are entitled to return to your old job if you take just OML of
26 weeks.
Ø
If you return after AML of up to a further
26 weeks, you are entitled to return to your old job, unless that is not reasonably practicable. In that case, you must be
offered a similar job – one that is the same kind, in the same place and in the same capacity.
Ø
If your job has been made redundant during
your OML or AML, your employer must offer any suitable alternative vacancy on broadly comparable terms.
Ø
You can take up to 4 weeks parental leave
immediately after the end of your OML, and return to your old job. If you take
more or you if add any parental leave on to AML, and it is not reasonably practicable for you to return to your old job, you
must be offered a similar one.
· If you are sick at the end of Maternity Leave and cannot
physically return, you transfer to your company or statutory sick pay scheme. You
cannot be dismissed unless a man in similar circumstances would be dismissed e.g. exhaustion of sick leave. Even then, the employer has to follow certain procedures, including consultation; investigation of your
current medical condition; transfer to alternative employment.
· If your employer refuses to allow you to return because
you have taken the OML or AML, this will be an automatically unfair dismissal (see 19 Am I Protected From Dismissal or Detriment
During Maternity).
· Your contract continues in all or some respects depending
on whether you are on OML or AML.
Ø
During OML of 26 weeks, all contractual
rights except pay continue to accrue as normal e.g. seniority and holidays accrue.
Ø
During AML of up to a further 26 weeks,
most of your contractual rights are suspended, except the right to notice, redundancy compensation, disciplinary or grievance
procedures, and the duties of trust, confidence and good faith. So seniority,
pensions rights pay increments do not accrue. Any scheme reflecting past
performance should be paid on a pro rata basis to any work undertaken during the year.
Ø
OML or AML both count as service for gaining
employment protection rights including holiday leave under the Working Time Regulations.
Ø
Pension contributions and, therefore,
pensionable service in occupational pension schemes continue during both OML and AML, but calculated by reference to your
actual maternity pay and not your normal pay. However, in money purchase schemes,
only the amount of contribution actually paid will count.
If you want to change your working
pattern, on your return from maternity leave e.g. to work part time, you should make a request for flexible working Your employer must seriously consider your request and can only refuse if there are good business grounds
for doing so (see Can I Request Flexible Working?)
Complaints about failure
to allow you to return to work complaints should be made to an Employment Tribunal, generally within 3 months. Sex Discrimination complaints and complaints under the Part Time Workers Regulations should also be made
to an Employment Tribunal, again within 3 months. Before bringing a claim you must use the statutory grievance procedures.
If your employer has dismissed you without complying with the statutory dismissal procedure, the dismissal will be automatically
unfair (see Group 5 Discipline and Dismissal).
5.
Am I Entitled To Ante-Natal Care And/Or Health And Safety Protection?
Ante Natal Care
All women employees, irrespective of service or hours worked are entitled
to paid time off during normal working hours for ante natal care. You should be paid at your normal rate of pay and for any
travelling and waiting time in attending your appointment. Antenatal care can include parentcraft and relaxation classes,
provided they are taken on the advice of your midwife or doctor. After your first appointment, your employer has the right
to ask for evidence of further appointments.
Health and Safety Protection
All women, irrespective of service or hours worked, are entitled to health and
safety protection. Employers must assess the risks to health and safety of any
new or expectant mother or her baby or where he employs women of childbearing age. If
you are pregnant or breastfeeding, you should request a health and safety risk assessment in writing. Your employer must:
1) Carry out a risk assessment of any processes or working conditions,
physical, chemical and biological agents which could jeopardise your health and/or that of your baby while you are pregnant,
breastfeeding or if you have given birth within the previous six months.
2) If a significant risk is established, your employer must do all that
is reasonable to remove it or prevent your exposure to it.
3) Tell you about the risk and what steps are being taken to deal with
it. Your employer should take account of any reasonable fears that you have. You may find it useful to discuss your concerns
with your midwife or doctor first.
4) If the risk cannot be avoided, your employer should, if it is reasonable
to do so temporarily alter your working conditions or hours of work; or if this is not possible or does not remove the risk
5) Offer you suitable alternative work if available (on terms and conditions
not substantially less favourable); or this is not available
6) Suspend you on full pay for as long as is necessary to avoid the
risk.
If you work nights and your doctor or midwife provides a medical certificate stating that you
should not be working at night for health and safety grounds, you employer should offer you day work. If this is not available,
you should be suspended on full pay.
Although there is no right to breastfeed
at work, as a breastfeeding mother, you have special health and safety protection at work under the same rules that protect
pregnant women. Breastfeeding includes expressing milk. If you are still breastfeeding when you return to work, notify your
employer in writing and ask for a health and safety risk assessment.
Your employer is obliged to provide
“suitable facilities” for you to rest. These are not stated except
that in the Code of Practice it is advised that they should be “conveniently situated in relation to sanitary facilities
and, where necessary, include the facility to lie down”. If your working
conditions prevent you from continuing to breastfeed successfully, your employer should follow the same steps as outlined
above under Health & Safety Protection.
Complaints about a failure to allow
you to take time off for ante-natal care, to carry out a risk assessment or to force you to work night work can be made to
an Employment Tribunal, generally within three months of the action.
6. Can I Take Time Off To Look
After A Dependant?
You can have a reasonable amount
of unpaid time off work to take action which is necessary to deal with an unexpected or sudden problem and make any necessary
longer term arrangements. This covers the following:
· to provide assistance when a dependant, or somebody who reasonably
relies you, falls ill (whether physically or mentally), is injured or assaulted; or a dependant gives birth (this may fall
within paternity leave).
· to make arrangements for the provision of care for a dependant, or
any person who reasonably you, who is ill or injured
· to make arrangements when a dependant dies – this could include
funeral arrangements, executor functions.
· to make arrangements when a dependant’s care unexpectedly breaks
down – this could include child, disabled or elderly care. It also includes
making arrangements for the provision of care for the illness or injury of any person who reasonably relies on the employee.
· to deal with an unexpected incident during the time when a school
has responsibility for your child
Dependants are defined as:
Ø spouse
Ø child (no age defined)
Ø parent
Ø a person who lives in the same household, but is not a lodger, employee
or boarder (this would include live-in unmarried partners, same sex partners, relatives)
A dependant also includes anyone
who reasonably relies on you for assistance and may include the following:
Ø someone for whom you are the primary carer or the only person who
can help in an emergency e.g. a relative who you look after or an elderly neighbour living alone who falls and breaks a leg
and you are the closest on hand at the time of the fall.
You must tell your employer as soon as possible the reasons for your absence and how long you
are likely to be off. This may not, according to the circumstances, happen until
after you return to work. The leave is unpaid and it is envisaged that it will
be no longer than 1 or 2 days in length.
You are protected against dismissal or any detrimental act, including denial of promotion, facilities
or training opportunities, by the employer for taking dependants’ leave.
If your employer has unreasonably refused to allow you to take dependants’ leave, you can
make a complaint to an employment tribunal. Although you should initially try
to resolve the issue through the grievance procedure, claims regarding dependants’ leave are not covered by the statutory
grievance procedures. If the matter is not resolved internally you must make your tribunal claim within 3 months of the refusal.
7.
What Rights Do I Have to Parental Leave?
If you are a parent, including adoptive parents, an unmarried father named on the child’s
birth certificate or have parental responsibility for a child you may be entitled to parental leave.
There are two levels of parental leave: those that are negotiated and those that apply in the
default scheme. If you negotiate a parental leave agreement it must provide at
least the following rights:
·
A total of 13 weeks unpaid leave after
1 year’s service (for parents of disabled children the length of leave is 18 weeks)
Ø the leave applies to children born on, or for whom the employee has
acquired formal parental responsibility, after December 15 1999, and to children born before December 15 1999 and under 5 years
of age at that date.
Ø Both parents are entitled to parental leave, for each child under
5.
Ø It can be taken up until the child is aged 5.
Ø If the child is adopted the leave can be taken in the five years
following adoption to a maximum age of 18 years
Ø If you have a child who has been awarded a disability living allowance,
the leave can be taken until the child reaches 18
Ø
You are protected from unfair dismissal
or detriment for taking or asking for parental leave
Ø You have the right to return to the same job if you take 4 weeks
parental leave or less. If you take more than 4 weeks parental leave, or if you take parental leave after additional maternity
leave you will have the right to return to the same job, unless this is not reasonable practicable. In that case you should
be offered a similar job on terms and conditions that are not substantially less favourable.
Under the default scheme:
·
Unless you are the parent of a disabled
child, leave must be taken in blocks or multiples of one week. (A week is based on your normal working week, so if you normally
work three days a week a week’s parental leave would be three days).
· You can only take four weeks’ leave in any one year
·
Seniority rights are suspended during
leave, but terms relating to duties of trust, confidence and good faith, notice, redundancy compensation and disciplinary
or grievance procedures continue.
·
Your employer may request evidence of
parental responsibility and, where relevant, disability
·
You have to provide notice of 21 days
for each period of leave
·
Your employer can postpone your leave
for up to 6 months by giving you 7 days’ counter notice, but only if their business would be unduly disrupted by you
taking the leave when you want to. However, an employer cannot postpone if:
a) you are the father of a baby and you are taking leave at the time
of the birth (see also 25. Can I Take Paternity Leave) or
b) you are adopting a child and taking leave at the time of the placement
(see also 24. Can I Get Paid Adoption Leave)
If your employer unreasonably postpones leave; prevents, or tries to prevent, you from taking
leave or subjects you to dismissal or any other detriment, you can take a complaint to an Employment Tribunal. Complaints generally have to be made within a period of three months.
8.
Can I Get Take Paid Adoption Leave?
Adoption leave was introduced in April 2003. Ordinary adoption leave (OAL) lasts for 26 weeks. You can also take up to a further 26 weeks of additional adoption leave (AAL). Only
one parent of an adopted child can take adoption leave, however the other could take parental leave or paternity leave for
adopters. So joint adopters can choose who takes adoption leave and who takes paternity leave.
To qualify you must:
·
be an employee i.e. someone with a contract
of employment. So some agency, casual and temporary workers may be excluded
·
have been told that you have been matched
by an adoption agency with a child, and
·
have told the agency that you agree to
the proposed placement, and
·
have been continuously employed for 26
weeks by the date when you are notified of being matched with a child for adoption.
