Key pregnancy and maternity rights at work | myhrtoolkit

Recent research indicates that many women (and other people who can get pregnant) still suffer from pregnancy discrimination in the workplace. So what are an employee's maternity rights at work and how do these affect the organisation?

Research on pregnancy and maternity at work

During the summer of 2017, the Equality and Human Rights Commission undertook a major piece of research to establish attitudes to pregnancy. Some key findings were:

• 77% of mothers felt that they had experienced negative or discriminatory treatment at work during pregnancy;
• 20% of mothers felt they had been harassed or spoken to negatively about pregnancy (or related flexible working) from colleagues and employers;
• Approximately 11% of mothers believed they had been dismissed or treated so poorly (based on their pregnancy) they had to leave their employment; and
• 10% of mothers felt they had been discouraged from going to antenatal appointments.

You can read their key findings (this link prompts a PDF download).

What legal maternity rights do employees have?

So, what rights do pregnant employees have at work? The rules around pregnancy and maternity rights at work are complex; none of the following should be taken as legal advice, but as a summary of some of the key rights:

Maternity leave and pay

An employee is entitled to up to 52 weeks' maternity leave, comprising ordinary maternity leave and additional maternity leave. They are entitled to up to 39 weeks statutory maternity pay, which is normally:

• The first 6 weeks: 90% of their average weekly earnings before tax
• The remaining 33 weeks: £151.20 or 90% of their average weekly earnings (whichever is lower)

The requirement not to be pregnant is unlawful

An employer cannot require an employee not to be pregnant in order to be able to do a job. Even where the job may involve specific dangers to a pregnant person, the European court of Justice has held that, if necessary, an employer should take on another employee on a temporary basis to cover the employee's post during pregnancy and absorb the cost.

Health and safety obligations

All employers must assess workplace risks and alter working conditions or hours of work to avoid any significant risk to the health and safety of pregnant or recently pregnant people in the workplace. Health and safety software with specialised welfare tags for staff, such as myhrtoolkit, can be highly helpful for recording and tracking this.

Track important factors such as pregnancy and maternity with our Health and Safety management software features

Right to return to the same job after maternity

If the employee takes only Ordinary Maternity Leave, they are entitled to return to the "same job in which [they were] employed before [their] absence". The terms of employment must be the same as, or not less favourable than, they would have been had the employee not been absent.

Where the employee has taken Additional Maternity Leave, the employee is entitled to a suitable alternative job on terms and conditions no less favourable than before their maternity leave (in a situation where it is not reasonably practicable to return to the same job).

Antenatal appointments

Pregnant people are allowed paid time off to attend antenatal appointments regardless of hours worked or length of service.

Flexible working requests

Employees with 26 weeks' continuous service can request flexible working for any reason. There is a statutory procedure which the employer must follow.

Breastfeeding

Under health and safety legislation, employers are required to carry out a risk assessment, provide suitable facilities for breastfeeding parents to rest, and to provide adequate rest and meal breaks, but there is no general right to time off to breastfeed.

Discrimination because of pregnancy-related illness and absence

An employer is not permitted to take into account any pregnancy-related absences for the purposes of absence management or when deciding on a dismissal. Ultimately, an employer must not subject an employee to a detriment or a dismissal for any reason connected to pregnancy or maternity.

Learn more: What are the 5 fair reasons for dismissal?

Training and development

Employers must ensure that employees on maternity leave are informed of any jobs that become available, including opportunities for promotion and transfer, and must enable them to apply.

Priority for alternative employment in redundancy situations

Where an employee on ordinary or additional maternity leave is potentially redundant, they are entitled to be offered any suitable available vacancy with the employer.

Special treatment in connection with pregnancy or childbirth

An employee cannot bring a claim of sex discrimination at work because they have not been given the same “special treatment” as a pregnant person. However, pregnant employees and those on maternity leave should only be given “special treatment” to balance up the playing field, no further.

Maternity leave and pay

An employee on maternity leave is not entitled to most of their contractual terms of pay. However, they are entitled to an increase in maternity pay arising from any pay rise otherwise entitled to. The employee is also entitled to any pay (including as a bonus) arising out of time worked before and after maternity leave and during any period of compulsory maternity leave.

Enforceable legal pregnancy and maternity rights

If an employee is treated unfavourably due to pregnancy and/or maternity, there are a range of claims they can bring:

• The Equality Act 2010 is the key protection for pregnant employees, as pregnancy and maternity are protected characteristics. It is unlawful to treat someone unfavourably:
  • Because of pregnancy or an illness connected to pregnancy
  • Because they are on, or want, maternity leave
• Alternatively (or in addition) the employee may also bring a claim for sex discrimination (although in this case the employee will have to specifically refer to an employee who is not pregnant to show different treatment).
• Finally, the employee may be able to bring a claim for automatically unfair dismissal using the Maternity and Parental Leave Regulations 1999, if the reason for their dismissal is that they are pregnant or on maternity leave.

Read more from the myhrtoolkit blog

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Coronavirus in the workplace: how to keep employees safe

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Note: This guide to pregnancy and maternity rights at work has been checked and approved by senior employment lawyer Matthew Ainscough of Bell & Buxton incorporating Ironmonger Curtis. The guide was last updated on 21st January 2021.