Employment Law: Debunking Misconceptions About Employees on Maternity Leave

This summary is based on Judicium’s HR ‘Sofa Session’ from the 22nd of June, with our resident expert Jenny Salero, LLB (Hons), L.P.C. This session focused on the rights of employees on maternity leave, the importance of keeping staff informed whilst on leave including updates on vacancies, TLRs promotions and potential restructures and their rights to a role on their return to work.

Key Entitlements to Maternity Leave

Who is entitled to Maternity Leave (mat leave)?

Maternity leave is available to ‘employees’, not workers, who are due to or have given birth.

When can an employee take maternity leave entitlement? 

The earliest an employee can take maternity leave is 11 weeks before the expected week of childbirth. The member of staff can communicate with you their chosen date they wish to start their maternity leave, or if baby has other plans and arrives early, maternity leave can commence the day after the birth.

What are employees entitled to under maternity leave?

• Ordinary Maternity Leave (OML) – The first 26 weeks of maternity leave.
  • The first 2 weeks of ordinary maternity leave are compulsory
• Additional Maternity Leave (AML) – This immediately follows on from OML. It is the remaining 26 weeks of the 52-week entitlement
  • Whether an employee uses their AML can have an effect on the rights of the individual returning to work and the role she is returning to.
• Pregnancy and Maternity Leave are a protected characteristic.
  • People or staff are protected from discrimination, being subject to a detriment or being treated unfairly during the protected period, which starts from the date the individual is pregnant and runs to the end of additional maternity leave or return to work, whichever is sooner.

Key Areas to be Mindful of in Relation to Maternity Leave 

1. Changing the start date/automatically starting maternity leave 

• Staff members should give notice of when they wish to start maternity leave before the end of the 15th week before the baby is due.
• If that is not possible due to circumstances such as baby’s sudden arrival, they must notify as soon as they possible can.
• If a member of staff wants to change their date to start mat leave, they should provide 28 days’ notice where possible.
• When a pregnant staff member goes on sick leave and the illness is related to the pregnancy in the 4 weeks prior to the expected date of birth, employers can trigger maternity leave to start early.
• NB: We recommend line managers have open dialogue with the staff member throughout the period of pregnancy. For more information and best practice advice focusing on pregnant employees, please join our upcoming sofa session here.

2. Stillbirths and miscarriages 

• If a mother is 24 weeks pregnant or more and the baby is stillborn, the employee will be entitled to maternity leave.
• Parental bereavement leave – a new provision introduced in 2020 that provides a statutory right to take 1 or 2 weeks of leave within 56 days of a child passing away. It is paid at the statutory rate of pay.
• If the mother is less than 24 weeks pregnant, she will only be entitled to maternity leave if the baby is born alive and sadly passes away. There is no right to maternity leave or parental bereavement leave before 24 weeks if the baby is lost or miscarried.

3. Reasonable Contact

• There is a right to maintain reasonable contact from the employer’s perspective with the individual whilst she is absent on maternity leave.
• It is important to discuss the best way to contact and how often you intend to communicate with the staff member prior to her commencing maternity leave, including contact on personal email addresses or mobile numbers.
• This contact could include keeping them notified about urgent matter such as big changes in the school or new job roles that have become available.

4. Use of KIT days

• Staff can choose to use ‘keeping in touch’ days or KIT days during maternity leave.
• Staff can use up to 10 days without bringing maternity leave to an end.
• They can count as partial days or whole days and the staff member is usually paid at their normal rate of pay for the hours or days they’ve worked.
• They are often used toward the end of maternity leave to help staff with reintegration into the workplace or for training. These dates should be agreed with the school.

5. New roles to be advertised

• It is important to make any staff member who is off on mat leave aware of any relevant job vacancies.
• Examples include roles with more responsibilities, TLRs, and roles being advertised internally.

6. Performance/ appraisal issues

• As staff on maternity leave cannot suffer a detriment, they must not be forgotten about in the staff appraisal process, performance management reviews or pay as part of pay progression.
• It’s important not to take an ‘out of sight, out of mind approach.
• Work proactively to have conversations earlier around these areas prior to maternity leave starting where possible to ease accommodating the issues during mat leave.

7. Increases in pay

• If a member of staff receives a pay increase whilst she is on maternity leave, e.g. through pay progression, moving through threshold, or a cost of living allowance, etc, the statutory maternity pay must be recalculated and backdated.

8. Disciplinary issues

• If there are any disciplinary issues that arise before maternity leave, ideally it is best to resolve the outcome prior to the staff member starting maternity leave.
• You can investigate while the staff member is on maternity leave, but you must consider if it essential to do so and do you need to use the formal process or could you issue management guidance upon the staff member’s return?
• Think carefully and ask for advice from your HR provider before inviting staff on maternity leave in for disciplinary investigations.

9. Ending Fixed Term Contracts (FTCs)

• When ending an FTC, you are ending that person’s employment from the legal perspective.
• You must have a fair reason (conduct, capability, illegality, redundancy, or some other substantial reason) for ending the FTC where someone has been employed for two years or more.
• Confirm the contract is ending in writing and best practice advise would be to offer the member of staff the right of appeal.
• Also consider whether the provisions noted at point 10 apply.

10. Redundancy

• The Maternity and Parental Leave Regulations 1999 that state when a member of staff on maternity leave is selected for redundancy, the employee is entitled to be offered another suitable alternative vacancy (if one is available) and the terms should be no less favourable than if she had continued to remain employed under her previous role.
• These regulations also pertain to terminating FTCs due to redundancy.

Ending Maternity Leave and Right to Work

1. Changes to Provision

• Ordinary Maternity Leave – Staff that only take OML are entitled to return to the same job.
• Additional Maternity Leave – If a staff member has utilised any/all of her AML and/or taken a period of unpaid parental leave immediately following OML, if it is not practical for them to return to the same role, they can return to a different job that is suitable and appropriate but no less favourable terms.

2. Flexible Working Requests

• You may find individuals returning from maternity leave may make a flexible working request.
• Follow your flexible working request policy and for more information on FWR please see our summary notes from the previous sofa session.

3. Breastfeeding

• If there are any mothers returning to work who are still breastfeeding, the guidance from the HSE states that it is best practice to make space available for the mother to express/feed and there should be risk assessments in place.
• NB: A HSE clearly states that a toilet is not a suitable environment for a person to be pumping, expressing or feeding.
• We advise to be as accommodating as you can be in order to refrain from indirectly discriminating against breastfeeding mothers.

4. Sickness

• What happens when a member of staff is on maternity leave and goes off sick? Sometimes staff, particularly those who have had a difficult birth, may not be well enough to return when mat leave finishes.
• The individual will move from maternity leave to sick pay upon her return to work. They are then managed in the same way as any other member of staff suffering a long term condition.

5. Repaying occupational maternity pay

• If a staff member does not return and you are following either burgundy or green book for teaching and support staff, there are requirements to repay some occupational elements of maternity pay. This must be made clear to your staff.
• Burgundy Book – For teachers, they must return for 13 weeks (which does include school closures). If they don’t, they must repay the 12 weeks of half-pay or a lesser sum that is at your discretion.
• Green Book – Support staff must return to work for a period of three months in order to not have to repay the occupational maternity pay they received.
• Returning to work but staying off sick is still classified as returning to work.

5 Top Tips for Employers with Staff on Maternity Leave

1. Don’t forget them! Keep in contact with employee whilst they are absent on maternity leave.

2. Make sure staff are kept informed of any relevant vacancies – even if you are not sure that it would be of interest.

3. Deal with any FWR consistently, fairly and make sure any refusal can be objectively justified – please see here for details from previous session.

4. Consider the reason for any termination of a FTC – is it technically a redundancy? Should we be offering another role if there is a vacancy?

5. Ensure proper risk assessments and a suitable environment is still up if mum is still feeding on her return to work.

EHRC Pregnancy and Maternity Guidance - https://www.equalityhumanrights.com/en/our-work/managing-pregnancy-and-maternity-workplace

HSE breastfeeding guidance - https://www.hse.gov.uk/mothers/employer/rest-breastfeeding-at-work.htm

If you’d like to review Judicium’s forthcoming sofa sessions for the remainder of this academic year please click here

Follow us on Twitter: @JudiciumEDU

© This content is the exclusive property of Judicium Education. The works are intended to provide an overview of the sofa session you attend and/or to be a learning aid to assist you and your school. However, any redistribution or reproduction of part or all of the contents in any form is prohibited. You may not, except with our express written permission, distribute or exploit the content. Failure to follow this guidance may result in Judicium either preventing you with access to our sessions and/or follow up content.