Pregnancy and Maternity
If you are a pregnant employee or on maternity leave you have a range of rights under the law, the key ones are -
You can have time off for antenatal appointments.
There is Health and safety protection while pregnant and breastfeeding.
You can have up to 52 weeks’ maternity leave, regardless of length of service.
You will get Statutory maternity pay (SMP) for up to 39 weeks (if eligible)
The right to return to the same job.
Priority for alternative employment in redundancy cases.
The right to request flexible working conditions on return to work.
Protection from dismissal, detriment or discrimination by reason of pregnancy or maternity leave.
Agency workers will qualify for time off for antenatal appointments (after 12 weeks), and from discrimination, and SMP. Other non-employees will also qualify for protection from discrimination provided they fall within the wider definition of employment in the Equality Act 2010.
So long as you are an employee or provide personal employment services and not a genuinely self-employed person then you are protected against discrimination on the grounds of your pregnancy. This protection runs from the time you become pregnant until the end of your maternity leave. However, many of the rights available to you whilst pregnant are dependent on you informing them that you are pregnant.
Your employer is under a duty to do a general risk assessment if they employ any women of child-bearing age to do work of a kind that could involve risk to the health and safety of a new or expectant mother or her baby from any processes, working conditions or physical, chemical or biological agents, must include an assessment of those risks in its risk assessment. Common risks include;
long working hours;
lifting and carrying;
extremes of heat and cold, and
movements and postures.
Once you have notified your employer in writing that you are pregnant they are under an obligation to do a move specific assessment and remove significant risks that you could be exposed to. They should also give you information about the risks that have been identified and what action they have taken to remove them.
If a risk is identified your employer must temporarily alter your working conditions or hours of work to allow them to take reasonable action to avoid the risk. If it is not reasonable for them to take such action you should be offered suitable alternative work. If there is no suitable alternative work available, your employer must suspend you for as long as is necessary to avoid the risk.
If you are suspended on maternity grounds you are entitled to be paid.
You as a pregnant employee have a statutory right to paid time off during working hours “for the purpose of receiving antenatal care”, regardless of the hours you work or your length of service.
Antenatal care is not restricted to medical examinations and can include relaxation classes and parent craft classes, provided that these are recommended by a registered medical practitioner, registered midwife or registered health visitor.
There are no formalities for exercising these rights, you should just inform your employer of the time and date of your appointments.
If you don’t give your employer enough notice it may be reasonable for them to refuse your request.
An example of it being reasonable for your employer to refuse you time off might be if you gave short notice of a appointment that was neither urgent, or it was reasonable for you attend the appointment outside working hours.
Apart from your first appointment your employer is entitled to ask for evidence of antenatal appointments.
If you are treated unfavorably because of a pregnancy-related illness, this will constitute unlawful pregnancy and maternity discrimination and any dismissal will be automatically unfair.
If you’ve been dismissed because you’re pregnant
If you have been dismissed because of your pregnancy you can bring a claim to an Employment Tribunal. When a tribunal looks at your claim for dismissal, there are certain legal tests that they will apply. One of these tests is how long you’ve been working for your employer. Generally, you must have been in your job for a certain length of time before you can claim unfair dismissal.
However, there are certain reasons for dismissal which a tribunal will decide are automatically unfair. If you’re dismissed for any of these reasons, you will be able to claim, regardless of how long you’ve worked for your employer.
DISMISSAL FOR PREGNANCY IS AN AUTOMATIC UNFAIR REASON FOR DISMISSAL.
Dismissal for pregnancy is also considered to be discrimination and you can make a separate claim for this in addition to a claim for unfair dismissal.
This page tells you more about what you can do if you think you’ve been dismissed because you’re pregnant or have given birth.
If you can show a tribunal that the main or only reason that you’ve been dismissed was because you’re pregnant or are due to give birth, your dismissal will be automatically unfair. You will also be able to claim pregnancy discrimination. Your employer can’t escape liability by arguing that it was reasonable to dismiss you in the circumstances or that you hadn’t been employed for long enough.
Dismissal because of pregnancy includes dismissal for:
pregnancy or any reason connected with it, for example, a pregnancy-related illness
having given birth or any reason connected with it
taking maternity leave
being suspended from work on medical grounds under health and safety law. This could be, for example, if you’re told you’re not allowed to work because you’re pregnant, have recently given birth or are breast feeding
exercising any of your rights under your contract of employment while you’re on maternity leave. This doesn’t include your right to be paid
being made redundant during, or at the end of, your maternity leave, and not being offered a suitable alternative job when there was one available.
For your claim of automatic unfair dismissal for pregnancy to succeed, it’s essential that your employer knows or believes that you’re pregnant. You could prove this by:
proof that you told you employer you were pregnant.This could be an e-mail, letter, or a witness who heard you tell your employer you were pregnant
a sick note from your GP which refers to your pregnancy and which was given to your employer. However, it’s best for you to tell your employer directly that you’re pregnant
a copy of the Maternity Ceritificate Mat B1 form that you gave to your employer to claim Statutory Maternity Pay.
Your employer would probably argue that they dismissed you for reason that had nothing your pregnancy
Your Employer would be unlikely to admit that they have dismissed an employee for being pregnant. You may have had no previous problems with your performance at work, but as soon as you told your employer you were pregnant they started finding fault with your performance. If they then dismissed you, this is a clear indication that the real reason for your dismissal was because you were pregnant. This is discrimination and your dismissal was automatically unfair.
You may be able to show the dismissal was automatically unfair if your employer has always been happy with your work and you’ve had good appraisals.
You’re also entitled to written reasons if you’re dismissed at any time during your pregnancy. If your employer fails to provide these without a good reason, you can complain to a tribunal and could also be awarded up to two weeks’ pay in compensation.
If you make a claim for unfair dismissal and sex discrimination during pregnancy, it’s up to your employer to prove that your dismissal was for a fair reason and not because of your pregnancy.
There may be circumstances when you can be dismissed during pregnancy for fair reasons, such as gross misconduct or persistent poor performance. However, except in the most serious cases of gross misconduct, your employer will be expected to have warned you about the misconduct and carried out the correct disciplinary process.
If you feel you have been treated badly because of your pregnancy and are maternity leave do get in touch and we can advise you on your options.