A recent report from EHRC found smaller businesses struggled with management of maternity leave – so employment lawyer Philippa Wood has prepared a useful set of guidelines on what you should know.
Maternity gives employees automatic rights that only arise in very few other situations. Naturally many employers dread it –not because they don’t want to support the employee through this lovely time but for fear of putting a foot wrong and incurring criticism at a sensitive moment. But if you get the right advice and plan ahead, maternity leave can be a breeze. Within the myriad of law surrounding this area, here a few of the main points to be aware of.
Firstly, be prepared. What do your contracts of employments, policies and procedures say about maternity leave? Do you offer a statutory scheme only or an enhanced one? Do your employees know this?
Any enhanced schemes should be clearly set out in an accompanying policy or within a handbook, so that they are not binding contractually and can be changed if necessary. If you just offer a statutory scheme, you could simply point employees towards a tailored guide such as that on the government website. A larger company may want to outline all the statutory details. It’s a question of what you feel is right for your business.
Now to the dreaded word – discrimination. The Equality Act of course came into force in 2010 and brought together a major review of discrimination, including new provisions. The nuts and bolts of it speak for themselves: an employer cannot treat a job applicant or employee unfavourably, at any time starting from the beginning of pregnancy to the end of maternity leave, because of her pregnancy or because of an illness she has suffered as a result of her pregnancy. Similarly, an employer can’t treat someone unfavourably because they are on compulsory maternity leave or exercising or seeking to exercise the right to ordinary or additional maternity leave.
Employers need to be thinking about discrimination from the point of recruitment. It’s pretty obvious that if you engage a young, female workforce, the higher the chances of more going on maternity leave. Taking care to monitor the ages and sexes of the candidates you interview is useful and of course be aware that you cannot say anything or ask questions about babies or the planning thereof at the point of recruitment.
When an employee announces she is pregnant, her rights kick in and this is where as an employer you must make sure your house is in order. If you are not looking out for your employee, for example making sure that her working environment is not detrimental to her health and pregnancy, this is where you may face one discrimination claim. A lot of employers don’t seem to realise that being pregnant is not the same as being sick so be aware of employees who are taking time off for pregnancy related issues and what this means in contrast to normal sick leave.
If you have given her sufficient terms, as above, she will know the process of leave and the dates on which she can start and finish, how she has to report this, whether she will receive enhanced or statutory maternity pay or maternity allowance (for employees who have been with their employer for less than 26 weeks leading up to the 15th week before childbirth).
Sometimes it is a shock to employers to learn that an employee is assumed to be taking a whole year off unless she says otherwise. If you are a good employer, you will have a plan of action for maternity leave. Are you getting maternity cover or are you going to absorb that job amongst other employees for the duration of the leave? Don’t forget that the employee will be nervous about leaving a cover in her job whilst away.
It sounds obvious but all too regularly happens that an employee will come back from leave to find her cover has “taken her place”, which obviously also has potential discrimination implications, so be careful how you handle the handover and make sure the cover’s terms and conditions make it clear they are only cover and will not be staying in that job when the employee returns.
Another area that comes up for advice from clients is keeping in touch (KIT) days, a number of days during which the employee may come in and work during her leave. Although KIT days are a statutory right, there is no statutory right to be paid for them, although most likely the employee will be expecting to be paid and this may indeed be the reason why she is utilising her KIT days in the first place. Most employers in these situations would agree a payment in advance, usually a pro-rated day rate.
Finally, although these rights have broadened considerably of late, an employee returning from maternity leave is the most likely candidate for a request for flexible working. There are specific rules regarding how an employee makes a request for flexible working and the company’s rights to refuse such a request. Again, if you have more than a few younger staff, then it might be a good idea to have a flexible working policy in place. With the right planning and preparation and the right people, maternity leave can be a pleasurable experience for both parties.
Philippa Wood is an employment lawyer at Keystone Law.
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