Maternity Rights

With the laws around maternity rights expected to change again under the new Labour Government, we thought it would be a good time to provide a recap on the key points for employers.  Pregnancy and maternity are complex areas, and most rights are a day-1 right under employment law and as you may be aware, there is a high risk of a discrimination claim for employers who get it wrong. 

Pregnancy rights

Pregnant employees have 3 main legal rights before commencing maternity leave:

1. Health and safety protection.
2. Paid time off for antenatal care.
3. Protection against unfair treatment, discrimination or dismissal.

Health and Safety 

When an employee informs you that they’re pregnant you must carry out a risk assessment, to assess the risks to the employee and their unborn baby.  Where there are risks, the employer must take reasonable steps to remove them.  If you can’t remove the risks, you should look for alternative work or suspend the employee on full pay. 

Employers must carry out an individual risk assessment (and review this regularly) if they are informed that an employee is pregnant, given birth within the last 6 months or is breastfeeding.

Making reasonable adjustments

If your employee is having a difficult pregnancy, you should look at and agree wherever possible to making reasonable adjustments, such as varying start and finish times, an OH assessment, time working from home (if possible) or taking extra breaks. 

Time off for antenatal care 

Employees have a day-1right, whether they are working full or part time, to a reasonable amount of time off work with full pay.  Appointments include time off for scans, health checks, relaxation and parentcraft classes.   Reasonable time off includes travel time and the length of the appointment.  Employers cannot make an employee change the date or time of an appointment but after the first appointment employers can ask for proof, such as an appointment card or email confirmation. 

There is currently no legal right for time off work for IVF treatment or related sickness. 

Protection against unfair treatment

It is against the law to discriminate against anyone because they are pregnant.   Pregnant employees should not be overlooked for training, pay increases or promotion.  Pregnant employees have the right to be offered an alternative job, if one is available, if they are selected for redundancy.  This applies even if other colleagues are deemed to be more suitable for the role. 

The redundancy protection period was extended on 6 April 2024, it now runs from when an employee tells their employer they are pregnant and ends 18 months from the date of birth or the expected week of confinement.  Employees who have started their maternity leave and notified their employer before the 6 April 2024 are also protected. 

Managing sickness absence

This is often a challenging area for employers, and employees’ health and attendance will very much differ from person to person and often depends on their role.  It is discriminatory to discipline an employee for pregnancy related absenteeism and absences should not be included towards any absence triggers you may use to manage general short term absenteeism under your absence management policy.  

For employees who are off sick because of a pregnancy-related illness in the 4 weeks before the baby is due, by law maternity leave and pay (if due, as not all employees will be entitled to SMP) will start automatically after the first day off.  It is important to discuss this with your employee if neither of you want this to happen as the start of the maternity leave can be deferred and doesn’t have to start straight away.

During maternity leave

Before an employee goes on maternity leave, agree with them how often and by what method they would like to stay in touch.   You must let your employee know about important changes that might affect them, such as promotion or job opportunities, training, redundancies or any reorganisation.   A failure to do so could be viewed as discrimination.

Aside from the usual statutory maternity leave and pay entitlements, employees are entitled to request Keeping in Touch (KIT) days.  If you can agree and facilitate KIT days, these are an ideal opportunity for employees to retrain, attend meetings and reconnect with the team.  

In this article we’ve touched on a few of the key areas of a complex and sensitive subject.  Please do not hesitate to contact us for more detailed expert HR and H&S advice and guidance as soon as you’re informed that one of your employees is pregnant.