Pregnancy and maternity – the statistics and the basics
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The Equality and Human Rights Commission (EHRC) and the Department for Business, Innovation and Skills (BIS) have recently published a lengthy but interesting research paper looking at pregnancy and maternity related discrimination in the workplace. Having interviewed 3,254 UK mothers and 3,024 UK employers, they’ve pulled together some interesting facts and figures relating to pregnancy, maternity leave and returning to work.
Amongst the findings from the paper:
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11% of mothers reported being dismissed, made compulsorily redundant or felt so poorly treated that they had to leave their employment;
7% said they felt under pressure to hand in their notice;
10% of mothers said they were discouraged from attending antenatal appointments;
15% reported experiencing humiliating, belittling or offensive treatment regarding their pregnancy;
9% reported negative comments resulting from their flexible working requests;
Almost three out of 10 mothers said they were not allowed the flexibility they had requested during pregnancy;
15% said they were given unsuitable work or workloads during pregnancy;
14% reported being encouraged to take time off or be signed off sick before they were ready to begin their maternity leave;
9% said they were treated worse upon their return from maternity leave than before.
Interestingly, a number of employers weren’t aware of certain rights mothers or expectant mothers had during employment, or felt some of their rights were just too difficult to facilitate.
The key rights afforded to pregnant employees are:
Time off for antenatal appointments;
Up to 52 weeks’ leave (the first two weeks being compulsory);
Health and safety protection (whilst pregnant and breastfeeding);
Statutory maternity pay for up to 39 weeks;
Enhanced protection during redundancy;
Protection from dismissal, detriment or discrimination because of pregnancy or maternity;
Right to return to the same job;
Right to request flexible working.
We won’t look at all the rights in detail, but some of the more specific findings regarding certain rights are quite interesting.
Time off for antenatal appointments
Regardless of length of service, pregnant employees (and agency workers) are eligible for paid time off during working hours to attend antenatal appointments. What constitutes an antenatal appointment can be wide and the time off is legally described as being “for the purpose of receiving antenatal care”. Provided they are recommended by a medical practitioner, midwife or health visitor, antenatal care can therefore include relaxation classes etc.
87% of employers surveyed considered the right to attend classes was reasonable, although smaller employers and those in the hotel and restaurant sector were among the many who viewed the right to paid time off as unreasonable.
One in 10 employers reported allowing employees paid time off to attend antenatal appointments was difficult to manage; with 34% saying it added significant cost to the business, 11% arguing it puts additional pressure on other staff and 7% saying it was too much time away from work for non-work related reasons.
Enhanced protection during redundancy
If an employee is made redundant during her 52 week period of maternity leave (39 weeks Ordinary Maternity Leave and 39 weeks Additional Maternity Leave), she is entitled to a statutory redundancy payment calculated as if she were not on maternity leave.
An employee on maternity leave also has priority over other employees in respect of any suitable alternative vacancies during a redundancy situation, which is an example of positive discrimination.
If, during a redundancy scoring process, the employee scored lower because she took, sought to take or benefitted from the benefits of maternity leave, her dismissal will be automatically unfair.
28% of employers considered enhanced protection from redundancy during Ordinary Maternity Leave was unreasonable and 13% said it was difficult to facilitate. 6% of mothers surveyed were made redundant and only 27% of those were offered an alternative position.
A redundancy process involving new or expectant mothers can be difficult to manage and whilst we recommend advice is sought throughout, ACAS have produced a useful guide to help you through the process.
Right to return to the same job
An employee returning to work at the end of Ordinary Maternity Leave (or earlier) has the right to return to the same job in which she was employed before she was absent. She will be entitled to any improvements which would have applied had she not been absent (such as a pay rise), and her employment must be on the same, or no less favourable terms than had she not been absent.
If returning after a period of Additional Maternity Leave, the employee is generally entitled to return to the same job on the same terms and conditions. However if, after Additional Maternity Leave or a period of at least four weeks’ parental leave taken after Ordinary Maternity Leave, it is not reasonably practicable to return to the same job for some reason (other than redundancy), the employee has the right to return to a suitable alternative job. The terms and conditions of the suitable alternative job must be no less favourable, and the job itself must be both suitable and appropriate for the employee in the circumstances.
Again, if the employee does not return to the same job or is not offered a suitable alternative job (having taken Additional Maternity Leave and it not being reasonably practicable for her to return to her old job), she will be entitled to claim for either automatic unfair dismissal and/or an unlawful detriment.
Of the mothers surveyed, four out of five returned to work, with 88% of those returning to the same employer. 83% of mothers returning to work with the same employer said they returned with the same job title and description. The remaining 17% returned to a different job title or description with almost half reporting that they returned to a job of the same level, 21% reporting they went back at a higher level but 30% reported returning to a lower level position.
Pregnancy and maternity can be a minefield for some employers and commonly, smaller employers struggle with the number of rights, or implementing changes, be that employing fixed-term cover, calculating payments and accrual of holiday, or dealing with a flexible working request. Pregnancy and maternity are protected characteristics under the Equality Act 2010 and so getting something wrong not only risks a claim for automatic unfair dismissal, but also a discrimination claim where the awards are uncapped.
For advice and assistance with all aspects of pregnancy and maternity in the workplace, from preparing policies to accommodating flexible working requests, please contact Catharine Geddes or another member of the team who will be happy to help.
4th August 2015
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