Pregnancy Discrimination – Protecting Your Maternity Leave Rights

Your Maternity Rights at Work

“Congratulations!”…Whether you hear this through gritted teeth or with genuine happiness from your boss, you have rights when you are pregnant, and your length of service is irrelevant. Pregnancy discrimination in the workplace is more common than we think.

The 4 main maternity leave rights are:

• The right to paid time off for antenatal care;

• The right to maternity leave;

• The right to maternity pay benefits; and

• The right not to be unfairly treated or dismissed.

The Right to Paid Time Off for Ante-natal Care

Pregnant employees’ maternity rights entitle them to time off from work for anti-natal care and they are entitled to be paid for any time off.

This means that pregnant employees are entitled to take paid time off work to attend appointments with midwives and other specialists involved in the care and well-being of the mother and her baby. Whether this extends to non-medical anti-natal care such as parental lessons, such as the courses offered by the National Childbirth Trust (NCT), is open to debate.

It is also uncertain whether an employee is entitled to paid time off work to undergo IVF treatment. Clearly, once she has conceived, any such appointments will be pregnancy related, but an employer may not be obliged to allow paid time off work for pre-conception appointments.

 The Right to Maternity Leave

All pregnant employees, irrespective of length of service, are entitled to 52 weeks maternity leave.

This is split into 26 weeks ordinary maternity leave (OML) and 26 weeks additional maternity leave (AML). There is also a period of compulsory maternity leave, which must be taken if you do not choose to take OML or AML. This is the 2 weeks following the birth (or 4 weeks if a factory worker).

There is no minimum time that an employee has to work before they become entitled to maternity leave rights. It available to all employees irrespective of their length of service, whether they work full or part time, hours of work or size of employer.

However, in order to qualify for maternity leave, the employee must tell her employer (1) that she is pregnant (2) when she expects to have the baby and (3) when she plans to start her maternity leave. This information must be given to her employer more than 15 weeks prior to her due date.

The employer should then advise the employee, ideally in writing, of the date that the employee’s maternity leave will end. This information is important, as it means that both parties are clear as to when the employee is expected to return to work.

The Right to Maternity Benefits and Pay

Whilst on maternity leave, pregnant employees are entitled to continue to benefit from all of the terms and conditions of their employment contract, except when it comes to pay. This means that a pregnant employee, whilst on maternity leave is entitled to continue to enjoy all non-cash benefits, such a life assurance, medical insurance, gym membership, the use of a company car etc. Even certain non-contractual or discretionary bonuses should be continue to be paid. Any interference by an employer in a pregnant employee’s benefits is likely to be regarded as an act of sexual discrimination and could give rise to a tribunal claim.

Similarly, a pregnant employee’s annual leave entitlement will continue whilst she is on maternity leave. A pregnant employee, cannot, however, take paid leave whilst on maternity leave, and in order to take paid annual leave, the employee would need to bring her maternity leave to an end first. This is why pregnant employees often opt to use any remaining annual leave entitlement at the beginning and end of their maternity leave.

Under the employee’s maternity rights, maternity pay is payable to employees who have worked for 26 weeks prior to the end of the 15^th week before her expected week of confinement (EWC). Broadly speaking, this means that, in order to qualify for maternity pay, the employee must have worked for 40 weeks before her due date.

If an employee is eligible to receive maternity pay, they must pay it to her for 39 weeks, calculated as follows: For the first 6 weeks, the employee is paid 90% of the her normal weekly earnings.

For the remaining 33 weeks, the employee is paid either 90% of their average wage or Statutory Maternity Pay (SMP) at the prescribed rate of £151.97 (as at April 2021) which ever is lower.

The Right Not to be Unfairly Treated or Dismissed

Pregnant employees have the right to not suffer any unfair treatment (detriment) or to be dismissed for a reason connected with their pregnancy. Any such detrimental treatment or dismissal would amount to an act of sexual discrimination. This means that any dismissal connected with an employee’s pregnancy will be automatically unfair. An employee has this right irrespective of their length of service.

Whether an employee has been dismissed for for a reason connected with her pregnancy is a question of fact, and employment tribunals will look at all of the facts surrounding a pregnancy related dismissals, before deciding whether an employee has been unfairly treated or dismissed because of her pregnancy.

Employers are occasionally reluctant to continue to employ pregnant workers, and often make up other reasons for their dismissal. This is especially the case when the employee has less than a year’s service, as it is easier to dismiss employees in these circumstances.

Nonetheless, if the employee is able to prove that the dismissal is linked to her pregnancy, she can recover damages for unfair dismissal and for injury to feelings within her maternity rights.

It almost goes without saying that it is unlawful to select an employee for redundancy as a result of her pregnancy.

Furthermore, whilst it is possible to make an employee redundant which she is on maternity leave, an employer is obliged to offer her suitable alternative employment in preference to all other employees at risk of redundancy.

The maternity leave rights information on this website is for guidance purposes only. Every case is unique.