Maternity employment rights and payments including how to challenge discrimination using the Equality Act (2010).
You’re pregnant? Or expecting a child another way? Congratulations! You must have so much going through your mind right now especially if it’s your first child. Things are going to change… a lot! But we can help you answer some questions about how your employment rights might be affected.
Did you know that you have now acquired a protected characteristic under the Equality Act 2010? No? Well, you have. This means that you cannot be discriminated against because you are pregnant, and it is unlawful if your employer does this.
The Equality Act 2010, section 18, (2) says:
A person (A) discriminates against a woman if, in the protected period in relation to a pregnancy of hers, A treats her unfavourably —
(a) because of the pregnancy, or
(b) because of illness suffered by her as a result of it.
Rights whilst working
It can be tricky to know when you should let your employer know that you are pregnant and there is no right or wrong time to do so. Some of the information below might help you decide when to tell your employer. Bear in mind that, to get maternity leave and pay you do need to tell your employer that you are pregnant by the 15th week before your baby is due (so around 25 weeks).
You should tell your employer in writing that you are pregnant. After you tell them, your employer should carry out an individual risk assessment. If your risk assessment shows that there is a risk, your employer should do everything that is reasonable to either remove the risk or prevent you from being exposed to the risk.
If you need health and safety adjustments because you are pregnant, you must notify your employer in writing.
Paid Appointment Leave
You are entitled to paid time off for antenatal appointments. This can include parenting or relaxation classes as well as medical appointments and regular check-ups. You do need to let your employer know about the appointments in advance.
It is rare, but your employer can refuse permission if it would be unreasonable for you to attend such an appointment. If this happens, contact us for advice.
You’re entitled to this right regardless of how long you’ve worked for your employer or how many hours you work.
If you’re an agency worker, it’s a little bit different. If you’ve worked for the same hirer for 12 weeks in a row you are entitled to Paid Appointment Leave.
Your employer can’t make you work extra hours to cover the time off for the appointment and they can’t pay you less for this time either.
The time off that you are allowed for an appointment should be reasonable, but it does include time travelling to the appointment as well as time waiting for the appointment, not just the appointment itself.
Whilst it is understandable for your employer to want to try and minimise disruption, they should not ask you to arrange appointments outside of working hours, especially if you work full-time.
You are likely to need to provide proof of your appointments except for the first one but you will still need to ask for the time off.
If your employer starts treating you unfavourably after you have asked for paid appointment leave, or attended the appointments, this may be discrimination. You can contact us for more advice if you think you have been discriminated against because of your pregnancy.
Sickness During Pregnancy
You should still follow your normal absence reporting procedure and your employer should still record your absences but any absences that are related to your pregnancy should be recorded separately so that they are not included in situations like appraisals, disciplinaries or redundancy situations.
For example, you are off sick for 1 week with morning sickness. This is a pregnancy related absence and so should not be taken into consideration when working out your absence for the above situations.
However, if you sprained your ankle exercising and cannot work for 1 week this is not a pregnancy related absence and so would be treated the same as any other absence if you weren’t pregnant.
You are entitled to ask your employer to make changes to your working hours, conditions and role due to your pregnancy. This could be because you have bad morning sickness and find it difficult to work in the morning, or you need to avoid heavy lifting, or you usually work nights, and your GP has told you it’s not safe to continue with this shift pattern. This falls under your employer’s legal obligation to protect the health and safety of their workers.
If you ask for a temporary reduction in hours, you will receive a temporary reduction in pay. Whilst you are entitled to request changes to your current working pattern you are not entitled to maintain the same pay if you reduce your working hours.
However, it may not always be possible for your employer to make these changes. By law, your employer must take all reasonable measures to either remove an identified risk or prevent you from being exposed to it. There is no legal definition of reasonable.
The Health and Safety Executive website provides guidance for employers. This includes information about what may constitute risks, carrying out a risk assessment, working nightshifts and other information.
See this page for more information about Shared Parental Leave/Pay.
Suitable Alternative Work
If the only alternative work that your employer can offer is on reduced hours, then your employer should continue to pay your normal wages. This is different than if you request reduced hours.
If you have existing childcare commitments and your employer offers you alternative work which does not fit in with your childcare needs, then this would not be deemed suitable alternative work.
If you’re not sure if your employer has offered you suitable alternative work you can contact us for further advice.
What if there is no suitable alternative work?
If you are suspended on health and safety grounds, you are entitled to your usual benefits and normal pay. The only time this wouldn’t apply is if you unreasonably refused suitable alternative work.
If you are suspended on health and safety grounds your employer cannot force you to start your Maternity Leave early unless you are 4 weeks away from giving birth.
Impact on Maternity Pay
Discrimination While Pregnant
Being pregnant should not mean that you are treated any differently than any other employee including situations such as pay rises, promotions, job applications, redundancy and dismissal. Whilst you may be pregnant and not get promoted or may be selected for redundancy it is unlawful and discrimination if this is because you are pregnant.
You apply for an interval vacancy as does your colleague, Frieda. You are pregnant but Frieda is not. Frieda is chosen for the vacant position. This could be pregnancy/maternity discrimination, but it would depend on the reasons for your employer choosing Frieda over you.
You choose to ask for feedback about why you weren’t successful. Your employer explains that Frieda has 2 years more experience in a role similar to the vacancy than you have and has management experience in a previous job, which you do not have. Based on this information it is unlikely that you have been discriminated against because you are pregnant.
However, if it were the other way round and you had more experience and a management background, but Frieda did not, then it may be a case of pregnancy discrimination as you appear to have more experience relevant to the role.
You apply for a new job, and you are pregnant, but you do not tell your prospective employer. You are offered the job and at this point you then tell them you are pregnant. They then rescind the offer of employment.
This is likely to be pregnancy/maternity discrimination unless the employer can provide a reason that is not related to your pregnancy. Legitimate reasons for rescinding a job offer can include:
-Receipt of unsatisfactory references -Details of a previously undisclosed criminal record -Not receiving proof of or meeting required qualifications -Not having the right to work in the UK
These are usually waited for when making a conditional job offer I.e., we will offer you the job subject to receiving the above information.
If you work for an agency some of your rights are different than if you were employed directly by a company. If you have worked for the same placement or hirer for at least 12 weeks in a row, then you gain the same employment rights as those employed directly by that company. This means you have the same rights to Paid Appointment Leave and the right to be offered suitable alternative work or to be suspended on full pay if there are health and safety risks that cannot be reasonably removed.
Regardless of how long you have worked at a placement or with the agency itself you have legal protection from discrimination under the Equality Act 2010. This means that your placement and your agency cannot treat you worse than others because of your pregnant. For example, you tell your agency you are pregnant and then they stop offering you any work. This is likely to be pregnancy discrimination.
There are more questions and answers about pregnancy and maternity rights at the Maternity Action website. If you still need further advice, you can contact one of our advisers to discuss your query.
What if I resign during pregnancy or maternity leave?
To resign, you should follow the usual process outlined in your employment handbook and provide your notice in writing. You remain employed until the end of your notice period and you will continue to accrue holiday entitlement until then. You will be entitled to your normal pay and benefits during your notice period.
If you resign before the 15th week before the week your baby is due to be born, then you will not qualify for Statutory Maternity Pay. You may be entitled to Maternity Allowance – see here for more information (link to MA section).
If you resign after you have met the qualifying criteria for Statutory Maternity Pay you are still legally entitled to received 39 weeks of payments from your employer, even if you resign, are dismissed or are made redundant or your fixed term contract ends.
The only time your SMP payments would stop, would be if you started working for a new employer during your 39-week period.
You do not need to pay Statutory Maternity Pay back if you leave your job. Your employer can choose to continue to pay you your Statutory Maternity Pay on your usual pay schedule or as one lump sum.
You may need to pay back any Contractual Maternity Pay you receive, on top of your Statutory Maternity Pay. You should check your contract of employment for more information about this.
You can find more information here.
Keep in Touch Days
If you only work part of a day or for a few hours this will count as using one of your KIT days.
A KIT day can include any work you would usually do as part of your job and can include training, meetings, and ‘any activity undertaken for the purposes of keeping in touch with the workplace.’
Will I get paid for my KIT days?
You should be paid for your KIT days, and it is expected that your employer will pay you your normal rate of pay. This maybe on top of your Statutory Maternity Pay or it may be offset against your Statutory Maternity Pay. You should discuss with your employer what payment arrangements are going to be.
Do I have to work KIT Days?
No, you do not have to work KIT days and your employer cannot force you to work them. However, your employer is not obliged to offer KIT days either.
You can find more information about KIT days here.
Returning to Work
If you take 26 weeks of maternity leave, known as Ordinary Maternity Leave, you have the right to return to exactly the same job on the same terms and conditions that you were on before you went onto maternity leave.
If you return to work after more than 26 weeks of maternity leave, known as Additional Maternity Leave, then you have the right to return to exactly the same job on the same terms and conditions that you were on before you went onto maternity leave unless your employer can evidence that it is not reasonably practicable for you to do so. This could be because your job is no longer available due to a business restructure or change in business needs.
It would not be reasonable if your employer keeps your maternity cover in your position and this disadvantages you by offering you a job with less pay or worse conditions.
If it is not reasonable or practicable for you to return your previous job, you should be offered another suitable alternative job on similar terms and conditions. You should not have to apply for it or compete against other applicants.
As mentioned above, you have the right to return to the same job with the same terms and conditions as before your maternity leave. If you wish to reduce your hours, this would be a change to your terms and conditions.
There may be many reasons why you need to change your working days and/or hours and you can make a request for flexible working. Flexible working requests are a statutory right for all workers, not just parents or carers, but this group of workers is probably most likely to make such a request.
You can make a request for flexible working either formally or informally. To make a formal request, called a Statutory Application, you must have worked for your employer for 26 weeks and you must not have made an application in the last 12 months.
Your application must be in writing and must include:
- the date
- a statement that this is a statutory request
- details of how you want to work flexibly and when you want this to start
- an explanation of how you think flexible working might affect the business and how this could be dealt with, for example if you’re not at work on certain days
- a statement saying if, and when, you’ve made a previous application
In response, your employer must reasonably consider your request and decide within 3 months, unless a longer deadline is agreed with you.
There is no definition as to what ‘reasonably consider’ means however, refusing your request instantly or having a blanket policy for such requests is unlikely to be reasonable.
You can read the ACAS Code of Practice on how your employer should handle your requests here.
There is more information about making a statutory request here.
You can also make an informal request, which is advisable to do in writing so there is a record of it being made and no confusion as to what has been requested. There is no specific time limit for your employer to deal with an informal request. Your employer handbook may have more details about making either a formal or informal request.
Protection from discrimination under the Equality Act 2010 is not only restricted to whilst you are pregnant. It also continues to apply afterwards although this may be based on a different protected characteristic rather than pregnancy/maternity, usually sex discrimination.
Whilst pregnant or on maternity leave it is unlawful if you are treated less favourably than someone else. Examples of less favourable treatment or unfair dismissal can include:
- selecting you for redundancy or dismissal because of maternity leave or because of changes to your job during your absence on maternity leave,
- failing to consult you about a reorganisation, changes to your job or redundancy during maternity leave,
- failing to provide a suitable alternative vacancy if your job is at risk of redundancy during maternity leave (Maternity and Parental Leave Regs 1999, reg. 10),
- making changes to your job that make it substantially less favourable to you,
- refusing training or promotion opportunities,
- reducing your pay or hours without your agreement following maternity leave,
- withdrawal of a job offer or a new contract
- pressure to resign and
- demotion on return to work
Redundancy During Maternity Leave
Things can change within your business whilst you are pregnant or on maternity leave which could result in the need for redundancies to take place. It is not illegal to make an employee redundant if they are pregnant or on maternity leave however, this cannot be the reason that an employee is chosen.
It is automatically an unfair dismissal if you are made redundant because you are pregnant or on maternity leave. You can bring an automatically unfair dismissal claim from day 1 of your employment instead of after 2 years of continuous employment.
If you believe that you have been unfairly selected for redundancy you should follow the process outlined by your employer.
The first stage would be to talk to your employer in the first instance. This can be done in person or in writing, but we would advise you to follow up any in-person discussions with written confirmation so there is a record of what has been said. Your employer might invite you to a meeting. You can ask if a colleague, or if you are a member of a trade union, a representative, attend with you.
If this doesn’t work, you should follow the formal appeals process. They should provide you with details of how to challenge this. You should start this as soon as possible as there are time limits for bringing claims to the Employment Tribunal. The deadline is 3 months minus 1 day.
Good Practice for Returning to Work
There are a number of things that both you and your employer can do to make the return to work easier, both before and after you return. Some suggestions to consider before or after return are:
- Decide on the type of and level of communication you will have during maternity leave before you it starts
- Make use of your KIT days
- Your employer could send you a welcome back letter shortly before you are due to return to work
- A meeting could be arranged on your first day back to discuss practical needs as well as any emotional support that may be needed
- Identify if there are any training needs or updates that need to be cascaded
- Making sure that your workstation is ready for you to start immediately
- Check with IT whether any passwords or permissions need to be updated or approved
- Carry out a risk assessment upon your return to the office if within 6 months of giving birth or breastfeeding
- If breastfeeding, ensure there are clean, private and suitable facilities for milk to be expressed and stored
- Consider a phased return to work initially by using holiday for part of the working week
- Arrange regular meetings for the first few weeks upon return
- This is not an exhaustive list, and you may wish to have a chat with other parents who have returned to work after maternity leave to see what worked well, or not so well, for them when they went back.