In this article we answer common questions on your legal rights when you are pregnant or on maternity leave and the rights of your partner to take paternity leave and look at shared parental leave.
Pregnancy and Maternity
Telling your employer
I’ve just found out I’m pregnant but don’t want anyone to know yet. Do I have to tell my employer?
There are different reasons for telling your employer you are pregnant. For instance, if your employer does not know you are pregnant, they cannot let you take time off for antenatal appointments (see below).
You may also feel unwell or tired due to your pregnancy. This could stop you from carrying out your duties as well as you might otherwise do or mean you need to take sick leave. The law stops your employer from treating you unfairly in these situations.
Therefore, it is better to tell your employer as soon as possible that you are pregnant. Your employer should then only tell those who need to know from a health and safety point of view. You could also tell your employer that you do not want anyone else to know yet.
Who can take maternity leave?
Only employees can take maternity leave. So if you are self-employed or a worker you are not entitled to maternity leave.
How much maternity leave can I take?
All employees are entitled to take one year of maternity leave.
This is split up into 2 types of maternity leave: the first 26 weeks of leave is called Ordinary Maternity Leave (OML); the second 26 weeks of leave is called Additional Maternity Leave (AML).
Do I have to take maternity leave?
Unless you work in a factory, you must take off the first 2 weeks following the birth. If you work in a factory, you must take off the first 4 weeks following the birth. This is to protect the health of you and your baby. It is illegal for your employer to allow you to work during these periods.
Other than that, you can take any period of maternity leave up to a year.
Do I just tell my employer when I am going to start maternity leave?
You must give your employer the correct notice.
You should tell your employer that you are pregnant at least 15 weeks before your baby is due. It is important that you work out this date so that you give notice on time.
If you did not know you were pregnant at the time notice should have been given, you must tell your employer as soon as you can.
You should also tell your employer when you are planning to start your maternity leave. You do not need to tell your employer when you think you will return to work.
It is best to put this in writing either in a letter or email so that you can show that you have done it.
Does my employer have to do anything?
Within 28 days of you giving your employer notice, they must write to you to confirm when your maternity leave will start and end (your employer should assume that you will take the full year).
How soon can I start my maternity leave?
You can start maternity leave at any time during the 11 weeks before the week you are due to give birth (so after you have reached your 29th week of pregnancy).
But if you give birth before you have started your maternity leave, your maternity leave will start the day after you gave birth.
Also, if you are still at work but need time off sick with an illness caused by your pregnancy in the 4 weeks before your baby is due, your maternity leave will start when you go off sick. If you are already on sick leave due to a pregnancy-related illness, your sick leave will change to maternity leave when you reach the date that is 4 weeks before the week your baby is due.
Orla is due to give birth on Sunday 1 December. She plans to start her maternity leave on Saturday 30 November. If she is off because of her pregnancy after 3 November (which is 4 weeks before her baby is due) her maternity leave will start even though she does not want it to. On the evening of 20 November Orla sees her midwife and is told she has very high blood pressure and cannot go to work the next day. Orla’s maternity leave will start on 21 November.
Lena is also due to give birth on Sunday 1 December. She planned to start her maternity leave on 20 October. Lena’s had complications throughout her pregnancy and on 15 October her doctor orders bed rest for the remainder of her pregnancy. Lena will be on sick leave until 19 October. Her maternity leave will start on 20 October as planned. If Lena had planned to take her maternity leave after 3 November, she would not have been able to do so and her sick leave would have turned into maternity leave on 3 November (4 weeks before the week her baby is due).
Can my employer tell me to start maternity leave earlier than I planned?
Your maternity leave will only start earlier than you planned if you are off sick due to pregnancy in the 4 weeks before the week your baby is due (as in the examples above), or if you give birth. You should tell your employer as soon as you can that you have given birth. They should then, within 28 days, let you know when your maternity leave will end.
Can I change the date I want my maternity leave to start?
Yes, but you must give your employer notice. The notice must be given either at least 28 days before the original date you wanted to start your leave or within 28 days of the new date (whichever is the earliest date).
Your employer must then confirm your new start and end date for maternity leave within 28 days of your leave starting.
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Yes. You are allowed time off for all medical appointments (midwife, doctors, scans etc) connected to your pregnancy.
I suffer from anxiety which is getting worse as my pregnancy progresses. My midwife has recommended an aqua yoga class. Does my employer have to give me the time off to go?
Yes, if an antenatal or parenting class has been recommended by a doctor or midwife, your employer should give you time off to go.
Is the time off to attend antenatal appointments and classes paid?
Yes. You should receive your normal pay.
Do I have to go back to work after the antenatal appointment or class?
This will depend on the time it is in relation to your working day. If only a small part of the working day is left after the appointment, you would not need to return that day.
I want my wife to come with me to the ultrasound scans. Can she?
The pregnant woman’s partner (which includes wife and civil partner) or the father can take time off to go to 2 antenatal appointments. This is unpaid. If you needed more than 2 scans, your wife would not have the right to take the time off for the extra scans but could ask for holiday.
Can I take holiday just before my maternity leave starts so that I can have more time off with the baby after it is born?
If you have not taken all of your holidays before your maternity leave starts, you could ask to take them before you go on maternity leave.
I planned to start maternity leave the day before my due date and to take holiday the 2 weeks before this. My baby arrived a week early. Will l lose my holiday?
No. If you do not return to work before the end of the holiday year, your untaken holiday will be carried forward to the following holiday year.
I’m pregnant and my boss is being awful about it. She keeps making nasty comments about my size, giving me jobs she knows I will find difficult with my bump and has given me a warning for being late even though it was due to morning sickness. I can’t stay there anymore. What are my rights?
The law protects pregnant women against all types of discrimination, including direct discrimination, indirect discrimination, harassment and victimisation. See Discrimination claims for an explanation of these terms. The law also protects women from suffering a detriment i.e. being treated unfairly or losing out in some way, because of the pregnancy, giving birth or being on maternity leave.
Your boss’s treatment is harassment and the warning for being late due to morning sickness is both direct discrimination and a detriment. Therefore, you would have the right to bring claims in the employment tribunal. You would first have to follow the ACAS Early Conciliation process.
If the treatment is so bad that you cannot stay there, this could also mean you have a constructive dismissal claim. If you leave because you have no choice due to your employer’s treatment, this is seen as a dismissal. You would have a claim for wrongful dismissal (for your notice pay) and unfair dismissal. If you can show that your employer’s treatment was due to your pregnancy, you would have a claim for automatically unfair dismissal too on the grounds of pregnancy (and a claim for direct sex discrimination). Unlike ordinary unfair dismissal, you do not need to have worked for your employer for 2 years to bring a claim for automatically unfair dismissal; it is a right you have from the day you start employment if you are pregnant. Your employer also cannot argue that they have acted reasonably in dismissing you (if the reason for your dismissal is pregnancy, it is automatically unfair).
I applied for a promotion and was told, off the record, that I would get it. But after I told my employer that I am pregnant, a colleague was promoted instead. I know my colleague has only worked for our employer for a few months and does not have the same experience or qualifications as me. What can I do?
If you have not been promoted because of your pregnancy, this is direct discrimination. See discrimination claims. It is also a detriment (i.e. you have lost out on the promotion because of your pregnancy). You could bring these claims in the employment tribunal but would have to follow the ACAS Early Conciliation procedure first. It would also be sensible to raise a grievance (a formal complaint) with your employer first to see whether there are any other (believable) reasons why you were not promoted, before you bring a claim.
I’ve been treated unfairly because of my pregnancy but I can’t face bringing a discrimination claim at this time. Can I wait until I’ve had my baby?
There are strict time limits for bringing tribunal claims. For discrimination and detriment claims, they must be brought within 3 months. This time limit is extended by the ACAS Early Conciliation procedure and a tribunal can allow claims after the time limit has run out if it believes it would be fair to do so but it is a big risk to not bring a claim in time and it is likely you would need to show that you could not face bringing your claim due to a mental health condition or delayed for some other serious reason.
How much maternity pay will I get?
This will depend on whether you are entitled to statutory maternity pay (SMP) and if you are entitled to extra pay under the terms of your contract of employment (contractual maternity pay).
Doesn’t everyone get statutory maternity pay (SMP)?
No. You must have worked for your employer for 26 weeks by the time you are 25 weeks pregnant. The way the rule works means that if you were already pregnant when you started work for your employer, you will not be entitled to SMP. If you became pregnant whilst already working for your employer, you will be able to get paid SMP so long as you meet the other requirements.
How do I get SMP?
If you have worked for your employer for long enough (see above) you must also earn enough money to get SMP. The government sets the amount each year. This is called the lower earnings limit. For the period up to 5 April 2020, this is £118 a week. If you do not earn as much as this, you will not get SMP.
You must also have told your employer that you are pregnant and that you want to claim SMP. This should be done at least 28 days before the day on which you want to start receiving SMP. In addition, you must give your employer proof of your pregnancy. This can be either a MATB1 form from your midwife or a doctor’s note.
For how long can I claim SMP?
You will be paid SMP for 39 weeks unless you return to work before this.
How much SMP will I get?
For the first 6 weeks, SMP is 90% of your average weekly pay. After that, for the remaining 33 weeks, it is a set weekly amount or 90% of your average weekly pay if this is lower than the set amount.
SMP usually increases by a small amount in April each year. The set amount is £148.68 a week for the year up to April 2020.
Will I have to repay my SMP if I don’t return to work?
No. SMP is a legal right (if you meet the conditions to get it) and does not have to be repaid.
In fact, once you are entitled to SMP your employer must pay you it even if you resign or are dismissed.
How will I know if I get contractual maternity pay?
This should be set out in a written contract of employment. For employees who work in the public sector, such as nurses, healthcare assistants and teachers, the right to contractual maternity pay may be set out in another document or agreement that applies to all employees. If you are not sure what you will get, ask your employer.
How much is contractual maternity pay?
There is no set amount and it’s usually an amount that has just been decided by your employer or agreed with a trade union. Some employers pay full pay and/or half pay for a certain period of your maternity pay but it can be any amount for any period of time. Contractual maternity pay normally includes any SMP.
Unlike SMP, it is common for employers who pay contractual maternity pay to make it conditional on you returning to work for a certain period of time after your maternity leave. If you do not, they can make you pay back the contractual maternity pay (but not any SMP).
I am on maternity leave and being paid the standard rate of SMP. Can I go back to work for just a few hours a week to increase the money I get?
No. If you go back to work, even for a few hours, you will not be entitled to SMP. The only time this is not the case is if you are doing a “Keeping In Touch” (KIT) day.
Keeping In Touch (KIT) Days
I really want to stay in touch with work whilst I’m on maternity leave. Can I insist on doing KIT days?
No. KIT Days (which stands for Keeping In Touch Days) allow you to work without losing SMP. But you can’t insist on doing KIT days as they have to be agreed with your employer.
If you employer is happy for you to do KIT days, you can only do a maximum of 10 KIT days.
It is best to talk to your manager about keeping in touch and how best you might do this. There might be a team away day or meetings that would be good for you to attend.
You should be paid your normal pay for doing a KIT day.
I don’t want to do KIT days. Do I have to?
No. KIT days have to be agreed between the employer and employee. If one of them does not want them to take place, then the other cannot insist that they do.
I’m on maternity leave and I’m getting called constantly by members of my team with questions about work. Can I ask them not to call me?
Your employer is allowed to have “reasonable contact” with you during maternity leave. This is to ensure that you are kept up to date on any important changes. The odd query is also fine but not constant contact like this. You should speak to your manager and ask for it to stop.
Benefits During Maternity Leave
Can I keep my company car during my maternity leave?
This will depend on whether you are allowed to use your company car for private or personal use. If you do, you should be allowed to keep the car during your maternity leave.
If you can only use your company car for work reasons, then your employer can ask you to return the car during your maternity leave. But you should get it back when you return.
I have a work pension. Do I still need to pay into it when I’m on maternity leave?
Yes, you will still need to pay into it but your contributions will be based on what you are being paid whilst on maternity leave (not your normal salary or wage). If you have a period of maternity leave when you are not paid, you will not have to contribute anything.
Your employer will have to continue their normal contributions (i.e. based on what your salary usually is) while you are getting pay during maternity leave. If you have a period of maternity leave when you are not paid, they do not have to make any contributions during that period.
Will I still be able to use my gym membership that is paid for by work?
Yes. You will still be able to use this during your maternity leave.
Returning To Work
I had planned to take off a whole year but I now want to go back to work earlier. Can I?
Generally, you must give your employer at least 8 weeks’ notice of the date on which you want to go back to work. So long as you have given the right notice, your employer must allow you to return. If you do not give the right notice, your employer can delay your return until they have had 8 weeks’ notice.
But if your employer did not tell you when your maternity leave should end, you do not need to give this notice.
I took a year’s maternity leave and have returned to work but my job is different. I don’t have as much responsibility or as many duties as before. Can my employer change my job like this?
If you only take OML i.e. return to work during or at the end of the first 26 weeks of maternity leave, you are entitled to return to the same job on the same terms and conditions.
If you take some or all of your AML i.e. return to work after being off for 26 weeks, you will be entitled to return to the same job unless this is not possible (for instance, due to a restructure) in which case you are entitled to return to a job that is appropriate for you to do. Your terms and conditions, such as your hours and pay, should be just as good as your previous ones.
If your employer does not follow these rules, you could claim to have been automatically unfairly dismissed. If you are automatically unfairly dismissed, this means your employer cannot argue that your dismissal was reasonable. See Unfair Dismissal. Your employer’s behaviour could also amount to a detriment and discrimination on the basis of pregnancy and maternity. See Discrimination Claims.
I want to return to work part-time. Can I?
You have the right to request to work part-time which your employer must consider. Your employer can only turn down your request for certain reasons. See Can I change my working hours?
I’m still breast-feeding. How will I manage this if I go back to work?
You should tell you employer, in writing, that you are breastfeeding as they need to protect your health and safety.
The legal rights of breastfeeding mothers who return to work are quite limited. Your employer only has to provide somewhere for you to rest and lie down if needed.
But you should talk to your employer about breastfeeding and ask whether they can either:
let you use a private area to express milk;
provide hygienic facilities to store expressed milk (such as a fridge used for food);
change or increase your breaks or length of breaks to allow you to express milk or to feed your baby if your baby is close enough for you to do this.
If your employer does not agree to make changes to support you breast-feeding, this could amount to indirect sex discrimination but it will depend on their business reasons. See Discrimination Claims.
Can my employer make me redundant whilst I’m on maternity leave?
Your employer can make you redundant whilst you are on maternity leave but your pregnancy and maternity leave should not have had anything to do with that decision in any way.
Nadia works as a sales advisor in a call centre. Her employer employs 20 other sales advisers. Nadia has been on maternity leave for the last 4 months. During her pregnancy, Nadia had a lot of days off due to morning sickness. Her employer has decided to reduce the number of sales advisors from 20 to 18. To decide who should be made redundant, Nadia’s employer decides to score each sales advisor against the following criteria:
Days off sick in the 12 months;
Number of sales in the last 6 months; and
Nadia scores well in relation to her skills, experience and disciplinary record but poorly for her sickness and sales. She is selected for redundancy. Her employer writes to her to tell her she is being made redundant.
If Nadia’s employer has included the days Nadia was off sick with morning sickness in her sickness score for redundancy (rather than ignoring those days), this is discrimination. If Nadia has been selected for redundancy due to her pregnancy-related sickness, she will also have a claim for automatically unfair dismissal (see above).
The same might also apply to her score for sales. If her employer has based her score for sales on only the 2 months she was at work (her being on maternity leave for the other 4 months), then this is discrimination. Nadia’s score for sales should have been changed so that she was not put at a disadvantage for being on maternity leave. Her employer should have based her score on her usual average sales when she was at work (and not absent due to pregnancy-related sickness) or given her a score based on the average sales of the other sales advisors. If she has been made redundant because her employer did not adjust her score, she will have a claim for automatically unfair dismissal (see above).
In addition, if Nadia’s employer has not discussed the redundancy situation or her score with her before making her redundant this could give rise to an unfair dismissal claim. If the reason it was not discussed with Nadia is because she is on maternity leave, again, this could give rise to a claim for discrimination and automatically unfair dismissal. See Discrimination claims.
I’m on maternity leave and have been selected for redundancy along with 3 other people. My employer has a vacancy in another area of the business and we’ve all been asked to apply for it. Should I have to?
An employer must follow a fair procedure when carrying out redundancies. See Redundancyfor more information.
Part of a fair procedure includes your employer thinking about whether they have any other suitable roles which those selected for redundancy could do.
If you are on maternity leave you have even more protection. Under the law, women on maternity leave should be offered any suitable roles with the employer before anyone else. So, you should not have to apply for the role. You should point this out to your employer.
Teapots-R-us Limited employs 2 area managers to manage sales teams in the North East (Alison) and the North West (Jo). Alison, the manager for the North East, is on maternity leave. Teapots-R-Us decide to change their business so they only need one manager for the North. Both the area manager roles will be made redundant and replaced with an area manager role and an assistant area manager role.
As Alison is on maternity leave, she should be offered the new area manager role before Jo.
Who can take paternity leave?
The following individuals can take paternity leave:
the father of the baby;
the husband, wife or partner of the mother.
Those adopting or using a surrogacy arrangement (whereby someone else has the baby for you) also have paternity rights.
You must also be an employee and when it is 15 weeks before the baby’s due date (this is called the “qualifying week”), you need to have worked for your employer for at least 26 weeks.
What must the time off be for?
You can only ask for paternity leave if you are going to help look after the baby.
How much paternity leave can I take?
You can take either one week or 2 weeks paternity leave. If you take 2 weeks, it must be taken together.
Karim wants to take 2 weeks paternity leave to help his wife look after their child. He’d like to take the week after the baby is born and then another week’s leave 3 weeks later.
He won’t be able to do this. The paternity leave must be taken in one go and not as separate days or weeks. He could choose to take one week’s paternity leave and then ask for holiday for the other week, or he could request parental leave (see Parental Leave – What is it and how does it work?).
Can I start my paternity leave a week before the due date (my partner is having a planned caesarean section) so that I can get things sorted for when the baby arrives?
No. You cannot start paternity leave before the birth of the baby.
My partner’s mother is staying with us for a couple of weeks after the baby is born. Can I delay my paternity leave so that I can help look after my baby after she has left?
Yes. You have 56 days (8 weeks) from the birth in which to take paternity leave. All of your paternity leave must be taken within this 8-week period.
How do I take paternity leave?
By the time of the qualifying week i.e. 15 weeks before the baby is due you must tell your employer when the baby is due and whether you want to take paternity leave for one week or two weeks. You must also tell your employer when you want your paternity leave to start. As you cannot start paternity leave until the baby is born and you will not know for sure when that will be, you should say that you would like your paternity pay to start either on the birth of the child or within so many weeks after the birth (so long as it all can be taken within 8 weeks of the birth).
Keith wants to take two weeks paternity leave when his baby is slightly older. As he must have taken all of his paternity leave within 8 weeks of the birth, when he gives notice to his employer, he will need to say that he would like to take paternity leave 6 weeks after the birth of the child.
How much will I be paid?
This will depend on how much you earn and whether your employer has agreed to pay you for paternity leave in your contract of employment.
You will be paid statutory paternity pay (SPP) if you earn enough money. Each year the government sets a minimum amount which you must earn. This is called the lower earnings limit. For the period up to 5th April 2020, this is £118 a week. If you do not earn as much as this, you will not get statutory paternity pay.
The rate of SPP up to 5th April 2020 is £148.68 or 90% of your weekly earnings if that is lower.
How much is contractual paternity pay?
There is no set amount and it’s usually an amount that has just been decided by your employer. Some will pay full pay for one or two weeks but it can be any amount. Contractual paternity pay normally includes any SPP.
Shared parental leave allows certain employees the right to share a period of leave, to look after a baby, with their partner.
It can seem a bit complicated.
Who can take shared parental leave?
Shared parental leave can only be taken by employees. You must also have been employed for 26 weeks by the qualifying week (i.e. 15 weeks before the week the baby is due) to take shared parental leave.
In addition, you and your partner must also both share responsibility for the child at the time of birth.
Anna has been on maternity leave for 9 months. Following the birth of her baby, Anna split up with her partner. Six months ago, she met Paul with whom she now lives with her baby. Anna would like to go back to work and Paul would be happy to look after the baby. However, as Paul did not share responsibility for the baby at the time of her birth, Paul cannot take shared parental leave.
Because the leave is being shared, your partner must also meet certain requirements in terms of work and pay. In the 66 weeks before the baby’s birth, your partner must have worked for at least 26 weeks and must have earned at least £390 over any of the 13 weeks during that time (an average of £30 a week).
When can shared parental leave be taken?
Shared parental leave must be taken within the first year of the birth of the baby.
As it is illegal for a woman to return to work within the first 2 weeks after giving birth, a maximum of 50 weeks of leave can be shared. Any extra time the mother spends on maternity leave will reduce the amount of shared parental leave available.
How can the leave be shared?
You can take shared parental leave in different ways.
For instance, you could take shared parental leave at the same time as your partner; at times different to your partner; all in one go; or over 3 separate periods (blocks). You can even go back to work in between.
Radha and Milan would like to take shared parental leave. They both meet the work and earnings conditions. They both want to spend as much time as possible looking after their baby together. They will both be able to take 25 weeks off work at the same time as shared parental leave. They would then both need to return to work.
Susan and Karen want to take shared parental leave. They would prefer to look after their child between them during his first year. Susan would like to be off for the first half of the year. Karen would then be off allowing Susan to go back to work. Susan could either take the first 26 weeks as maternity leave leaving Karen with 26 weeks to take as shared parental leave; or Susan could take the first 2 weeks as maternity leave, then 24 weeks as shared parental leave, again leaving Karen with 26 weeks to take as shared parental leave.
Sita and Simon would like to take shared parental leave in different blocks rather than all in one go. Sita plans to be on maternity leave for 12 weeks. This will leave 40 weeks of shared parental leave. She could go back to work for 8 weeks and then take shared parental leave with Simon for 10 weeks. They could both go back to work for 8 weeks and then both be off again for 10 weeks.
Ben and Hannah want to take shared parental leave. Hannah wants to take 6 weeks maternity leave. That will leave 46 weeks of leave. Ben will take this leave allowing Hannah to return to work.
Does my employer have to agree to shared parental leave?
This depends on what is being asked for. If you want to take your shared parental leave in one go, then your employer cannot refuse this. If, however, like Sita and Simon above, you want to take shared parental leave in different “blocks” of leave, returning to work in between, your employer can refuse.
As this is the case, it is best that you and your partner talk to your employers about how you would like to take shared parental leave so that you can discuss any concerns and, hopefully, come to an agreement.
Do I get Keeping In Touch (KIT) days the same as if I was on maternity leave?
Yes. In fact, you get more. You can have up to 20 KIT days each. These are in addition to any you might have taken on maternity leave (see above).
What will I be paid?
You will be paid statutory shared parental pay (SShPP) if you earn enough money. Each year the government sets a minimum amount which you must earn. This is called the lower earnings limit. For the period up to 5th April 2020, this is £118 a week. If you do not earn as much as this, you will not get SShPP.
The rate of SShPP up to 5th April 2020 is £148.68 or 90% of your weekly earnings if that is lower. It is payable for up to 37 weeks of shared parental leave.
Will my job be protected?
Like maternity leave, if you only take off 26 weeks in total (including time off on maternity leave), you should be allowed to come back to the same job with the same terms (holiday, pay, hours) as you had before.
If you take off longer than 26 weeks, you should be allowed to return to the same job or a similar job.
The law also protects you from detrimental (i.e. unfair) treatment because of taking shared parental leave.
With an honest and ethical approach to law, at Truth Legal you will have access to our specialist team of lawyers to help you with all your employment law matters. Our Head of Employment Law is Navya Shekhar, an employment law solicitor with over 10 years’ experience.
If you have any concerns about your treatment during your pregnancy, maternity leave or while you are breastfeeding – call us on 01423 788538 or contact us here.
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