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Maternity Care - Know Your Rights
New Gen
15 June 2007
You may be aware of recent changes to the law, which have increased maternity rights and benefits. The NCT have long campaigned on these issues, including increased paid maternity leave, paid paternity leave, and breastfeeding and expressing facilities at work. The new rights apply if your baby is due on or after 1 April 2007. it doesn’t matter when your baby is actually born; it is the due date that counts.
Below is a simple guide to the new regulations, covering your minimum statutory rights. Always check your contract of employment, as some employers offer better maternity entitlements than the statutory minimum.
Your midwife should give you al leaflet called Pregnancy and Work: What you need to now as an employee, which contains key information on your rights including where to look for further advice and a section for your employer. Small businesses can find further information in a took kit from the Equal Opportunities Commission.
Antenatal appointments
Provided you are an employee, you are entitled to paid time off work for antenatal care, arranged on the advice of a registered medical practitioner.
Risk assessment one
On being informed of your pregnancy, your employer must carry out a special risk assessment to identify potential risks in your working arrangements. If any are identified, the employer must take measures to eliminate them, such as by changing your working hours or offering you a suitable alternative role.
If this is not possible, you must be sent home on full pay until the risk is removed. Your employment rights should be protected during this time.
Maternity leave
All employees expected to give birth after 1 April 2007 qualify for 12 months' maternity leave as a matter of right, regardless of how many hour they work or how long they have worked for their employer.
Ordinary Maternity Leave (OML) lasts for 26 weeks. Whether it is paid or not depends on your contract of employment or your entitlement to Statutory Maternity Pay (SMP) See below.
Notice requirements
You must give notice of the following to your employer:
• That you are pregnant
• When you are due, and
• When you intend to take maternity leave
You must do so by the 15th week (the 'Qualifying Week') before your baby is due, to qualify for your maternity right.
You do not have to tell your employer before then but if you do, you hep to protect yourself from pregnancy-related discrimination and to ensure that your employer has to take step to protect your health and safety as well as that of your baby.
For SMP, you must give at least 28 days' notice of when you want payment to start.
Annual leave and employee benefits
Suring OML, all your contractual benefits (including holiday entitlement) should continue. This is not the case during AML, although your statutory annual leave (minimum 20 days per year) will continue to accrue during this period. Check you contract as some employers do offer more generous maternity benefits.
If your maternity leave spans a holiday year, either take your annual leave before you go on maternity leave or check with your employer that you can carry it over.
If you want to take more time off and you can carry annual leave over, you could consider either adding on annual leave or requesting unpaid parental leave.
Entitlement to benefits such as a company car continue to accrue during OML but not during AML.
Statutory maternity pay (SMP)
Your SMP will be based on the earnings you receive in the eight weeks before the Qualifying Week. If you are paid a bonus during this time, your maternity pay will be based on the enhanced rate.
You receive SMP for nine month. For the first six weeks you receive 90% of your average pay, followed by 33 weeks at the basic rate (£112.75 per week or 90% of your average earnings if that is less).
Therefore, if you take the full 12 months' maternity leave to which you are entitled you will only have three months of that leave unpaid. The Government intends to increase the paid period of maternity leave to cover the full 12 months by 2010.
You are entitled to SMP if you have worked for your employer for 26 weeks by the Qualifying Week and if you earn over the earnings limit (currently £87 per week). If you leave employment after that date, through dismissal or resignation, you will still qualify for SMP and your employer will still pay it.
Ordinarily, the earliest date that SMP can start is from the 11th week before the week your baby is due and the latest from the day following the birth. There are some exceptions to this (such as if your baby is born before the start of the 11th week). If you continue to work after this point, you can choose when you want your SMP to start. This can be any day after you have stopped work to have your baby, meaning that you SMP should begin on the first day of your maternity leave.
Maternity allowance
If you are not entitled to SMP you may be Maternity Allowance or Incapacity Benefit. Contact your local benefits agency for more details.
Maternity Allowance is currently £112.75 a week for 39 weeks (or 90% of your average earnings if that is less). It is available if: you have changed your job during your pregnancy, you are self-employed, you have had periods of low earnings, you have been unemployed during your pregnancy.
Your obligation while on maternity leave
Maternity leave previously came to an end from the time when mothers first went back into the workplace. So women who wanted to go back in or take part in important events at work faced losing the remainder of their maternity leave and /or pay.
The government have now introduced 'Keeping in Touch' days, which mean that while on maternity leave, you will be able to agree with your employer to work up to ten days during your leave, if you want to, without bringing your maternity leave to an end or losing out on maternity pay. This allows you to go into work and maintain links with your workplace without suffering any adverse consequences to your maternity entitlements.
These days can be taken at any point except in the two weeks immediately following the birth of your child.
Employers will be entitled to make 'reasonable contact' with you while you are on maternity leave, without this bringing you period of maternity leave to an end.
Returning to work
You do not have to give notice to your employer that you are returning from maternity leave if you plan to take your full entitlement, as your employer should assume that this is the case. However, it might help your employer to have this confirmed, as they have to give notice to temporary staff.
If you wish to return early, you must give notice to your employer. A minimum of eight weeks' notice is required if you intend to return before the end of your full year's maternity leave entitlement or if you change your mind about a date you have previously given to your employer.
If you do not do an employer is entitled to delay your return to work in order to take advantage of the eight-week period of notice, so try and make this decision as soon as possible.
When you return to work after OML you are entitled to return to exactly the same job. When you return to work after AML you are entitled to return to the same job, or, if that is not reasonable practicable, a suitable job on terms and conditions which are no less favourable. If your employer does not allow you to do so, this will constitute automatic unfair dismissal, for which you are able to bring a claim in the Employment Tribunal.
If you do not wish to return to work following your maternity leave you must give contractual automatic unfair dismissal, for which you are able to bring a claim in the Employment Tribunal.
If you do not wish to return to work following your maternity leave you must give contractual notice, which, to maximise your entitlement, you should give to coincide with the end of your maternity leave. You are entitled to paid in lieu of any outstanding accrued holiday as at the date of termination, including any leave accrued during your maternity leave. You do not have to repay your SMP.
Flexible working
If you have 26 weeks' service, you have the right to ask for part-time, reduced or flexible hours. An employer can refuse if there are good business reasons.
Making a request for flexible working requires following a specific formal procedure. This can take some time, so you should think about making your application as soon as possible after the birth of your baby. It may also be worth seeking specialist advice on your application.
Risk assessment two
Your employer should carry out a risk assessment on your return. This should address any issues concerning you as a new mother and your baby if you are breastfeeding.
Redundancy
You can be made redundant whilst on maternity leave, if your position genuinely is redundant. However, it would be an unfair dismissal and ex discrimination to select you for redundancy because you are pregnant or on maternity leave.
If you are made redundant whilst on maternity leave, your employer must offer you any suitable alternative vacancy that may exist, even if that vacancy is in a group of company and even if there are candidates better qualified for the position. You cannot be required to apply for any such vacancy or be interviewed for it. It should simply be offered to you.
Paternity leave
Paternity leave can taken by employers who have worked for 26 weeks by the 'Qualifying Week' (see above). As a rough estimate, fathers or partners working for the same employer before the start of pregnancy should qualify. The father of the new baby (or the partner of the mother) is entitled to two weeks' paternity leave, paid at the same rate as basic SMP. However, for those earning less than £87, paternity leave is unpaid. You can take either one or two weeks must be taken together. All paternity leave must be taken within the first eight weeks.
Notice must be given to the employer by the Qualifying Week (and at least 28 day before the intended start date).
Problems at work
Organisations do sometimes make mistake as maternity is a complex area. Use internal procedures first to check whether you have been treated within the law and company policy. If you're not happy, take advice from your trade union or a professional association, or call a helpline. Russell Jones & Walker also run an online helpline
www.rjw.co.uk/our-expertise/employment/equalityxpress
if you have not received appropriate treatment, get professional legal advice. Many Employment Tribunal claims must be brought within three months (less one day) of the act complained of. You may need to bring a formal grievance first. This can extend the time limit for making a complaint to an employment tribunal, depending on the exact circumstances. Trade unions and many professional associations will be able to help and support you through this.