Working mothers account for an accelerating share of the workforce in the UK. Just last year research released by the Resolution Foundation and Centre for Economic Performance at the London School of Economics (LSE) revealed that 74 % of mothers with 0-to-3-year-olds were in employment during 2021, showcasing a stable rise of 6% since 2019.
With an average of 11,400 UK births each year since 2018, it’s becoming increasingly important that businesses can tackle the challenges that pregnancy and new parenthood can present to their day-to-day operations. But what does that mean? And how can employers ensure they stay on the right side of the law when it comes to supporting Mums in the workplace?
How does the law protect pregnant women?
There are three main rights that all pregnant employees legally have:
- paid time off for antenatal care;
- maternity leave and pay;
- protection against discrimination and unfair treatment.
Prejudicing women because of their pregnancy, or any related illness, time off they need to take is unlawful.
There could be grounds for a tribunal if someone is dismissed, demoted because they are pregnant, are forced into working on maternity leave, or has their return to work impeded by their choice to breastfeed.
The law covers both existing employees and those going through the recruitment process.
As such, during recruitment, it’s illegal to enquire if a woman is pregnant, has children, or plans to. Even hinting at this would be a breach of the sex discrimination laws outlined in the Equality Act 2010. Even if an applicant chooses to divulge their pregnancy, employers should not let this affect their decision-making.
Up until 15 weeks before the anticipated week of birth, women are not obligated to tell an employer they’re expecting. So if a job offer is withdrawn upon the discovery of a pregnancy, an employer would risk discrimination and automatic unfair dismissal claims.
Alongside this, pregnancy or new parenthood should never affect anyone’s ability to further their career. People in this position should be extended the same opportunities as anyone else, and be given an ample chance to apply for any promotions. Applications should never be rejected because an employee is pregnant or on maternity leave, as this would violate sex discrimination laws.
Fairness is paramount during redundancy or termination too. Employees can’t be dismissed for any reason related to pregnancy as this would amount to discrimination and automatic unfair dismissal. However, if employment is terminated whilst pregnant/on maternity leave employers will need to provide full written reasoning in accordance with the Employment Rights Act.
Not providing sufficient proof of fair assessment would put an employer at an increased risk of legal action. As such, in redundancy circumstances, it’s sensible to consider historic performance reviews within consultations or for benchmarking, as pregnancy symptoms can temporarily impair a person’s overall productivity. Employers should remain mindful of this before taking disciplinary or corrective action if a pregnant employee achieves inadequate results.
What is the employer’s duty of care?
Employers have a duty of care to protect the welfare of their staff whilst at work, regardless of gender or personal status. But because pregnancy poses increased risks, employers have a legal responsibility to conduct regular risk assessments and evaluate how they can adjust working conditions to mitigate any additional threats.
Common risks can include heavy lifting or carrying, standing for long periods without sufficient breaks, or driving for long distances.
Where such concerns are evident, reasonable measures should be taken to remove them. This could be as straightforward as changing someone’s working patterns or offering more frequent or extra break times, but it could also mean finding them alternative work for the length of their pregnancy.
Because it is not legal to alter an employee’s contractual terms and conditions without prior consent, pay, benefits and leave cannot and should not be affected, even if the tasks an employee performs have to change for health and safety reasons.
If it’s thought that risks cannot be resolved, employees need to be suspended on full pay until a viable solution can be found.
Time off work
It’s best to be understanding towards an employee who’s experiencing physical or mental health complications because of pregnancy, and provide support, time, and space to recover. If you’re unsure whether an employee’s illness is pregnancy-related, you should request a doctor’s ‘fit note’.
Pregnant employees will be entitled to paid time off to go to antenatal appointments; refusing to allow this leave would amount to detriment under the Employment Rights Act 1996 and may constitute discrimination. Partners or co-parents also have the legal right to take unpaid leave to attend up to 2 antenatal appointments.
What maternity leave or shared leave are employees entitled to?
Irrespective of how long they have served a business, all employees are lawfully entitled to 52 weeks of maternity leave, should they wish to do so. However, to qualify for Statutory Maternity Pay (SMP), a person will have needed to have been employed by a firm for at least 26 weeks before they reach 15 weeks prior to their expected due date.
Naturally, employees don’t have to take their full maternity leave allocation, but the law dictates that they need to take a minimum of 2 weeks off work after the baby is born, or 4 weeks if they work in a factory or manual setting. As an employer, you mustn’t discourage an employee from taking all their entire leave if they wish to do so.
Expectant fathers or co-parents are also entitled to paid statutory paternity leave of up to two weeks. But they may also consider taking shared parental leave (SPL) or Statutory Shared Parental Pay (ShPP) alongside the mother. This means they can share up to 50 weeks of leave and 37 weeks of pay between themselves.
SPL and ShPP can be taken in blocks or all in one go. Parents can choose to be off work at the same time or to stagger the leave and pay. However, there are minimum service length and income restrictions to be aware of which can be checked on the YouGov website.
Navigating the return to work
Once maternity leave ends, an employee’s right to return to the same job they left very much depends on how much leave they took.
Anyone 26 weeks or less can legally expect to return to the same job they left. However, if they chose to take more than 26 weeks, they can only anticipate retaining their role if the employer believes that is “reasonably practicable”.
There must be a legitimate reason for this, however. And any alternative role must be comparable or appropriate for the individual, as well as being on the same contractual terms.
Of course, an employee may wish to proactively alter their contractual details because of their changed personal situation, ie, amendments or working days/times to cover childcare. As long as an individual has a minimum of 26 weeks of service, they will be entitled to put in a flexible working request. Employers must consider all flexible working requests fully, following the Acas Code of Practice, and give a final decision within 3 months.
Once back at work, employees will be legally allowed a reasonable amount of time off to look after a child if they are sick. This will often be unpaid, although that will be at the employer’s discretion.
Another important legal consideration, and one which is often misjudged, is a mother’s right to have time and somewhere private to express if they are breastfeeding. These breaks are not an extra employment perk, but a matter of human rights. Any discrimination or harassment towards a feeding mother should not be tolerated.
The point of no return
Should an employee decide to not return to work after maternity or paternity leave, they will need to follow the business’ standard process for resigning. Legally, this shouldn’t impact their maternity pay, and they will retain the right to any annual leave accrued.
However, if the employee is unhappy about how their return has been handled by their employer, or they feel like they have been inappropriately ‘engineered’ out of their role, they might wish to raise a formal complaint or ‘grievance’ which can have huge legal repercussions.
New parenthood is often a very emotive and stressful time, so as an employer, staying empathetic whilst following strict legal guidance is always advisable to avoid matters being escalated to the point where claims of discrimination are being lodged.
With the rise in popularity of flexible working, and mothers now making up an even greater share of the employment landscape, remaining inclusive will be key to ensure you attract and retain the talent that working mothers have to offer. And ultimately, it will create a far more rich, diverse, and inclusive workforce.
Tina Chander is the Head of Employment Law at Midlands law firm, Wright Hassall and deals with contentious and non-contentious employment law issues, acting for small businesses to large national and international corporates. She advises on a variety of employment law matters, including all aspects of employment tribunal proceedings and appeals.
Wright Hassall is a top-ranked regional law firm, providing legal services including: corporate law; commercial law; litigation and dispute resolution; employment law and property law. The firm also advises on contentious probate, business immigration, information governance, professional negligence and private client matters.