Managing maternity leave disputes and preventing them from occurring - A guide for employers

When you engage a new employee, a contract of employment will be signed by your new member of staff, setting out the agreement between yourself and your employee that is legally binding. This protects both parties and clarifies the terms under which the new employee will be working. All employers should draft a policy relating to the rights of employees relating to pregnancy, a policy governing maternity is of vital importance as disputes around maternity rights can be time-consuming and stressful.

Here, we explain what an employee’s rights are with maternity, how you can prevent maternity discrimination from occurring, and how to handle maternity disputes.

Click on a link to that section:

Find out how much leave a pregnant employee is entitled to take.

Find out what your responsibilities are if an employee tells you they are pregnant.

The meaning of maternity discrimination and how to avoid this.

Preventing maternity leave disputes from occurring.

Find out more about the different types of disputes arising out of maternity leave.

Read our guide to dealing with maternity disputes.

Find out how Giambrone & Partners can help you.

What leave are pregnant employees entitled to?

Statutory maternity leave is the right for pregnant employees to time off when having a baby, the statutory maternity leave amounts to 52 weeks made up of two phases:

  • ordinary maternity leave - first 26 weeks

  • additional maternity leave - last 26 weeks

An employee does not have to take 52 weeks but they must take two weeks leave after their baby is born, rising to four weeks if the person works in a factory.

The earliest that leave can be taken is 11 weeks before the expected week of the due date of the birth, unless the baby is born early. If this happens leave will start the day after the baby is born if the birth is early. If your employee is on sick leave for a pregnancy-related illness then maternity leave starts four weeks before the baby is due.

There is no minimum time pregnant employees are entitled to. However, they must inform an employer that they are pregnant 15 weeks prior to the due date for the birth of the child as follows:

  • Notify their employer that they’re pregnant
  • Tell their employer the expected due date
  • Inform their employer of the date they would like to start maternity leave. As explained above, this date cannot be earlier than the 11th week before the due date.

During paid maternity leave, the pregnant employee continues to benefit from their employment rights such as:

  • The right to fair treatment

  • The right to be paid

  • The right to receive appropriate bonuses

  • The right to be notified if there are any changes to their working conditions or job.

If you are dealing with a dispute over the rights of a pregnant employee it is advisable to seek help as soon as possible

Your responsibilities to an employee who is pregnant

Risk Assessments

Once your employee tells you that they are pregnant, you need to carry out a risk assessment to identify any risks in your workplace that could impact on both your employee’s health and that of her child. If there is a risk, you need to take immediate steps to remove the risk.

Pregnancy-related sickness

You must give your employee paid time off to attend any ante-natal appointments. Except for the first appointment, they should show you their pregnancy card, if you ask them to.

If your pregnant employee is taking time off work due to a pregnancy-related illness, you need to manage statutory sick pay in the same way you pay for other sicknesses.

Statutory Maternity Absence

Your employee must be treated fairly and you must plan for their maternity absence and how you will cover their role during their absence once you establish whether they intend to take the maximum 52 weeks paid leave.

Dismissal (if relevant)

If your employee’s original role is not suitable for someone who is pregnant, you need to offer them a suitable alternative. A pregnant employee who is unable to perform their job as efficiently due to their pregnancy or there is a risk that could impact on their health or the health of their baby should be treated as a health and safety issue by an employer and adjustments should be made to ensure their safety.

If there is no practical alternative role for them you can dismiss but the dismissal must be fair and cannot be because of the employee’s pregnancy, for example, an employee cannot be dismissed because they had time off for ante-natal appointments. Every effort must be made to avoid dismissal. If it is considered that dismissal is unavoidable, the procedure must be fair.

Can you offer extra maternity leave or pay?

You can offer more than the statutory amounts if you have a company maternity scheme. If you choose to do this, it is vital to make sure your maternity leave and pay policies are clear and available to staff.

What is maternity discrimination in the workplace?

It is unlawful to discriminate against an employee for any of the following reasons:

  • They are currently on maternity leave

  • They have been on maternity leave

  • They have tried to take up their right to maternity leave.

Maternity discrimination in the workplace often involves unfavourable treatment such as not promoting an employee when they deserve to be promoted or making an employee redundant for maternity-related reasons.

Employees benefit from additional legal rights during the ‘protected period’. This begins at the start of their pregnancy through all their maternity leave. For example, your employees should not be disadvantaged due to your policies, rules or procedures or through unfair treatment due to maternity. If an employee can demonstrate that they have been subjected to such treatment, there could be grounds to bring a tribunal claim against you.

Preventing maternity disputes with an employee

It is advisable to avoid maternity disputes with your employee by having a comprehensive compliant maternity policy in place that highlights all the requirements and expectations on both the employee and employee. The policy should include the following:

  • Explain to whom the policy applies.

  • Define key terms clearly to avoid any misunderstandings.

  • Explain the eligibility for maternity pay and leave.

  • Make employees aware of the rights that are protected whilst an employee is on maternity leave.

  • A guide to notifying the employer of pregnancy.

  • Rights of a pregnant employee such as time off for prenatal appointments.

  • Maternity leave conditions.

  • Statutory maternity pay.

  • Contact arrangements while on maternity leave.

  • Keeping in touch (KIT) days.

  • Return to work rights and procedure of the employee.

  • Shared parental leave.

  • The rights of employees when returning to work.

To avoid issues around maternity leave, it is important to undertake your responsibilities as an employer as quickly as possible.

If you need assistance on writing your maternity policy Contact us today for expert guidance.

Common maternity leave disputes

The following are types of disputes that sometimes arise:

  • Disputes over maternity pay: An employee is entitled to benefits while on maternity leave. If you do not pay the agreed amount, this could give rise to a tribunal claim for sex discrimination.

  • Unfair dismissal during maternity leave: An employee has the right to return to their previous job following ordinary maternity leave. Find out what counts as an automatic unfair dismissal here.

  • Maternity discrimination: unfavourable treatment such as not being offered training or not being told about appropriate job opportunities and victimisation could open up the potential for a tribunal claim for pregnancy discrimination. Find out more about dealing with discrimination disputes here.

  • Disputes over the length of maternity leave: To avoid this from happening, clearly outline the length of maternity leave in the maternity policy and document their maternity leave requests.

  • Disputes over maternity rights: Again, both the employer’s and employee’s rights regarding maternity leave must be outlined in the maternity policy.

Dealing with disputes related to maternity issues

If a dispute does arise due to maternity-related factors, such as a disagreement over maternity pay or maternity leave, first talk to your employee informally and attempt to resolve these issues through open communication.

Couple discussing maternity leave

If communication does not solve the issue, you may want to consider alternative dispute resolution (ADR), such as mediation or arbitration. Find out more about the benefits of using alternative dispute resolution here.

If you cannot resolve the issue through negotiation and an employee has grounds to take you to an employment tribunal, you will need to seek advice from expert lawyers; our experienced employment lawyers can assist with a wide range of issues including dealing with wrongful dismissal, claims for unfair dismissal, discrimination, unlawful pay deductions and breach of contracts.

If you are dealing with a dispute involving a pregnant employee Contact us today for assistance.

Getting help with a maternity dispute

All disputes with employees can be stressful and seeking legal advice at an early stage can save you time and money associated with a long drawn out dispute that eventually may be dealt with in the Employment Tribunal. Giambrone & Partners can help you with everything from writing employment contracts to handling maternity disputes. Don’t hesitate to get in touch with us today for expert guidance on the best way to move forward, or for representation in the employment tribunal.

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