Maternity Rights: A Review

Legislation currently provides the following maternity rights for women who satisfy the relevant qualifying conditions:

• time off for antenatal care;
• maternity leave;
• maternity benefits;
• the right to return to work after maternity leave; and
• protection against unfair treatment or dismissal by reason of pregnancy or child birth.

A pregnant woman is allowed paid time off from work to attend antenatal appointments. This is not defined by the relevant legislation, and tribunals have held that relaxation classes are an essential part of antenatal care where there is supporting medical evidence.

There are three different types of maternity leave:

1. Ordinary maternity leave (OML)

All employees, regardless of length of service, are entitled to a period of 18 weeks OML. This can commence at any time after the beginning of the 11th week before the expected week of child birth.

OML starts automatically if the employee is absent any time from six weeks before the expected week of child birth wholly or partly due to the pregnancy.

At least 21 days before the employee intends to start taking maternity leave she must notify her employer of:

• the fact that she is pregnant;
• the expected week of child birth; and
• the date when she intends to start taking leave (no earlier than the beginning of the 11th week before the expected week of child birth).

If an employee resigns or is dismissed before the date she has notified she loses the right to maternity leave. Dismissal, however, will be unfair if it is maternity-related.

If the woman wishes to return before the end of the 18 week period she must give at least twenty one days notice.

The contract of employment continues throughout the 18 weeks OML. The employee, therefore, has the right to continue to benefit from the employment terms and conditions which would have applied to her had she been at work, except for "remuneration".

At the end of her OML the employee is entitled to return to the job in which she was employed before her absence.

2. Compulsory maternity leave (CML)

An employee may not work for two weeks from the date of child birth. If the CML period falls later than 18 weeks after the start of OML, the period of OML will continue until the end of CML, and all entitlements and conditions will continue until the end of the CML period.

3. Additional maternity leave (AML)

Employees who are entitled to ordinary maternity leave and have completed one year’s continuous employment are also entitled to additional maternity leave. This runs from the end of the OML up to the end of the 29th week, beginning with the week in which the baby was born. The qualifying period of continuous employment of one year must be completed by the beginning of the 11th week before the expected week of child birth.

In addition to the OML notification requirements, the employee should let the employer know when the baby is born so that it can plan for her return 29 weeks later. She can decide to return early but, if

she intends to do so, must give 21 days notice of the date of her return.

Unless the employee’s contract specifies otherwise, the only terms and conditions that apply during AML are:

• the obligation of trust and confidence and good faith between the parties;
• contractual periods of notice;
• contractual rights to redundancy pay; and
• contractual terms and conditions relating to disciplinary and grievance procedures.

There is no right to contractual holidays during AML (save that the employer should comply with the paid leave provision in the Working Time Regulations 1998, that is, four weeks leave a year).

• have been continuously employed for at least 26 weeks continuing into the 15^th week before the baby is due;
• have average weekly earnings of not less than the lower earnings limit for the payment of National Insurance contributions;
• still be pregnant at the eleventh week before the expected week of child birth or have given birth by that time; and
• have stopped working for the employer.

If the employee satisfies these conditions, SMP will be payable even if her contract of employment ends at the start of the maternity absence or while SMP is being paid.

The employee must give notice to the employer in writing stating when she intends to stop work because of her pregnancy at least 21 days before her absence is due to begin, or as soon as is reasonably practicable.

SMP is payable at the following rates:

• higher rate: 90% of average weekly earnings, payable for six weeks;

• standard rate: currently £62.20 per week payable for up to a further twelve weeks. This will rise to £75 in April 2002 and £100 in April 2003.

SMP should be paid on the employee’s normal pay day and deductions for PAYE and National Insurance contributions will be made as well as any other lawful deductions, for example pension contributions.

Employers will be entitled to deduct 92% of the SMP paid from its contribution payments.