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When employees fall pregnant, they have a right to take maternity leave. As an employer, you must understand the rights your staff have in terms of maternity leave and ensure you grant these rights. If you are unsure and do not give your employee their rights, you could face a claim at an employment tribunal. This article will explain your employees’ rights concerning maternity leave in England and Wales.
Maternity Leave
Your employees receive 52 weeks of maternity leave, regardless of how long they have worked for your business.
Maternity leave consists of ‘Ordinary Maternity Leave’ and ‘Additional Maternity Leave’. Your employee can take 26 weeks of ordinary maternity leave, followed by 26 of additional maternity leave. Importantly, there is no gap allowed between the two forms of leave.
Maternity leave can start 11 weeks before the baby’s due date and if the baby is born early, leave begins the day after it is born.
Where your employees meet particular qualifying conditions, they are entitled to maternity pay for 39 weeks of their maternity leave. The qualifying conditions are:
- they have worked continuously for you for 26 weeks before their ‘qualifying week’; and
- their average pay for 8 weeks before their ‘qualifying week’ is a minimum of £120 per week.
Your employee’s qualifying week is 15 weeks before their baby is due. Where they do not meet the qualifying conditions, during the first 39 weeks of maternity leave, they will usually be entitled to another form of payment such as maternity allowance.
Rights Associated With Taking Maternity Leave or Having a Child
In addition to the right to take maternity leave and receive the associated pay, your staff have other rights due to taking this leave or giving birth to a child. For example, you are not allowed to treat a woman unfairly or discriminate against them. Likewise, you cannot unfairly dismiss them because they are pregnant, have given birth to a child or have taken maternity leave.
The Right to Return to Work
All your employees have the right to return to work after their leave. After ordinary maternity leave, employees have the right to the same job with the same terms and conditions. If you do not provide this, your employee may be able to claim:
- unfair dismissal;
- automatic unfair dismissal; or
- maternity discrimination.
Your employee may be able to claim maternity discrimination if they have been disadvantaged by being on maternity leave and you:
- pass some of their roles to another person;
- demote them;
- change their role; or
- keep the person carrying out their maternity cover in their role.
When your employees return after taking the additional maternity leave, they still have the right to return to the same job with the same terms and conditions unless it is not practicable for you to offer them the same job. If this is the case, you must:
- be able to demonstrate to your employee why this is the case; and
- offer them another suitable role with the same terms and conditions.
The Right to Contractual Terms and Conditions
While your staff are on ordinary and additional maternity leave, they have the right to all their usual contractual terms and conditions, except for the right to pay. These rights include:
- paid holiday leave which will accrue whilst on leave;
- any money owed to them such as for work completed before leave;
- contractual benefits such as lunch vouchers and holding onto their mobile phone and company car during leave; and
- during their ordinary maternity leave, their full pension contributions.
The Right to Changes to the Job Role
When your employee returns to work from leave, they have the right to ask you to make changes to their job role. These changes can relate to their:
- hours;
- days; and
- location.
The Right to a Suitable Alternative Vacancy
Where your employees return to work after maternity leave and there is a risk of redundancy before returning. You must offer them a suitable alternative vacancy, if available. However, if your employee already returned to work and redundancy applies to their role, they do not have the right to a suitable alternative.
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Key Takeaways
When your employees take their legal right to maternity leave, they have other legal rights too. For example, they have a right to return to the same job when they return with the same terms and conditions. However, where they are returning after Additional Maternity Leave and it is not reasonably practicable for an employee to return to their old job, there are rules you must follow in navigating this situation. Your employees are also entitled to the same contractual terms and conditions, except for those concerning their pay.
If you need help understanding what rights your staff have regarding maternity leave in England and Wales, our experienced employment lawyers can assist as part of our LegalVision membership. For a low monthly fee, you will have unlimited access to lawyers to answer your questions and draft and review your documents for a low monthly fee. So call us today on 0808 196 8584 or visit our membership page.
Frequently Asked Questions
Where your employees are legally classed as employees, they have a legal right to 52 weeks of maternity leave. Importantly, it does not matter how long they have worked for your business.
Your employees have a number of rights concerning maternity leave. For example, the right to return to work and the right to the same contractual terms and conditions when they return to work.
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