Pregnancy and Maternity Leave

It is unlawful for your employer to dismiss you because you are pregnant or for reasons connected with your pregnancy or maternity leave. It is also unlawful for your employer to deny you access to holiday pay, sickness pay, training or any other contractual benefit that all employees are entitled to. Pregnancy is not an illness and you do not suddenly become less capable of doing your job.

Entitlement to Maternity Leave

As an employee, you have the right to 26 weeks of ‘Ordinary Maternity Leave‘ and 26 weeks ‘Additional Maternity Leave‘ – making one year in total. Provided you meet certain notification requirements, you can take this no matter how long you’ve been with your employer, how many hours you work or how much you’re paid.

Ordinary Maternity Leave – The initial 26 weeks of maternity leave are called Ordinary Maternity Leave. You have a right to return to the same job after a period of Ordinary Maternity Leave. 

Additional Maternity Leave – The second 26 weeks of maternity leave (after the first 26 weeks of Ordinary Maternity Leave) are Additional Maternity Leave. You have the right to return to your old job, but if it is not reasonably practicable for the employer to offer you your old job back, you must be offered appropriate similar employment, on no less favourable terms, and with your seniority and pension conditions unaffected.

When You Are Pregnant and Working

When you are pregnant but have not yet started your maternity leave, you have the right not to be treated less favourably because of your pregnancy.

For example:

• you should be offered the same training and promotion opportunities as other staff
• you should be allowed to keep the same duties and responsibilities

Sick Pay During Pregnancy-Related Illness

If you have to take time off during your pregnancy because you are ill, you have the right to be paid sick pay according to the normal terms of your contract. Your employer is not allowed to treat you less favorably if the illness is related to your pregnancy.

Some employers pay enhanced sick pay on a ‘discretionary basis’. Sometimes, even though an employer refers to payments as ‘discretionary’, they can become an implied term of your contract. If this is the case and your employer refuses to pay you enhanced sick pay, and you think this is because your illness is pregnancy related, you may have a claim under the Equal Pay Act.

To make a claim, you would have to show that other employees are usually paid full sick pay. If you have been paid full pay in the past for other non-pregnancy related illness, you would have to show this too. The Equal Pay Act requires you to identify a male comparator in order to take a claim, but you may also be able to argue that you do not need a comparator.

If the sick pay is genuinely discretionary and does not form part of your contract, but you feel that your employer is not paying you enhanced sick pay because the illness is pregnancy related, this might fall under the Sex Discrimination Act rather than the Equal Pay Act.

The dividing line between claims that fall under the Equal Pay Act and claims that fall under the Sex Discrimination Act is unclear. Sometimes it is best to lodge claims under both Acts to be on the safe side. If you are uncertain you should seek further advice. Remember that the time limit for lodging claims under the Sex Discrimination Act is 3 months, which is shorter than under the Equal Pay Act.

If you are disciplined or dismissed or made redundant because of time off for a pregnancy related illness, you could have a claim under the Sex Discrimination Act or Employment Rights Act.

When You Are on Maternity Leave

During ordinary paid maternity leave, you are entitled to the same benefits that you would get if you were working full time. This includes things like:

• paid holiday
• employers’ pension contributions
• health club membership
• participation in share schemes

You are normally, but not always, entitled to pay rises and bonuses that you would have received if you had been working full time.

Statutory Maternity Pay is paid, for those who qualify, for the first 39 weeks of maternity leave. It is paid at:

• 90% of the employee’s average weekly earnings (before tax) for the first 6 weeks of maternity leave; then
• £139.58 or 90% of average weekly earnings (whichever is lower) for the next 33 weeks.

This means that the first 13 weeks of Additional Maternity Leave may be paid. The remainder, if you take it, will be unpaid leave.

When You Come Back to Work After Having a Baby

You must be allowed to return to your own job unless this is genuinely not possible: for example, if your post has become redundant while you were away. If this happens you should be offered a suitable alternative.

To receive the full extent of your rights, you must tell your employer (in writing if they request) that you are pregnant, preferably as soon as you know.

If you are having any problems at work due to your pregnancy speak to Rebecca Bird at System People for HR advice.