Staying up to date with pregnancy and maternity legislation

Pregnancy and maternity discrimination at work remains a growing issue, and many employers do not understand their responsibilities to support their pregnant staff and those who are on maternity leave. Fiona Martin, Director and Head of Employment Law at Martin Searle Solicitors, answers frequently asked questions from employers about pregnancy and maternity rights at work.

What rights do pregnant women have in the workplace?

Discrimination based on pregnancy is unlawful under the Equality Act 2010. Pregnant women have the right to not be treated unfavourably at work on the grounds of their pregnancy or pregnancy-related illness during their ‘protected period’. This is from conception to the end of statutory maternity leave but with special protection in a redundancy situation to 18 months after the baby is born.

Pregnant employees have a number of rights on maternity leave, including the right to a year’s statutory maternity leave, maternity pay, and the right to the same conditions, including pay rises, promotions and bonuses.

Employers cannot dismiss an employee because they are pregnant, and must take action to protect the health and safety of a pregnant employee during their pregnancy. If the employer is unable to avoid these risks, they must offer their employee suitable alternative work. All pregnant employees also have the right to reasonable paid time off during working hours to attend ante-natal appointments.

Can an employee be made redundant when they are on Maternity Leave?

Protection from redundancy is in place for employees who are on Maternity Leave. It is automatically unfair to dismiss or select from redundancy a woman where the principal reason for redundancy is connected to her maternity leave. This includes non-renewal of a fixed-term contract.

Employees who are on maternity leave can be made redundant in some circumstances, but the employer must give them priority over other employees who are also at risk of redundancy where a suitable alternative role is available. The capacity, place, terms and conditions of the new employment vacancy must be no less favourable than if she had continued to be employed in her old job.

From April 2024, protection from redundancy was extended to cover employees from the date they notify their employer of their pregnancy until 18 months after childbirth.

What do employers need to know if an employee is experiencing pregnancy-related sickness?

If an employee cannot attend work due to a pregnancy-related illness, they should report their absence the usual way and receive their usual sick pay. Employers should record pregnancy-related absence separately from any other sickness absence.

These absences should not be counted towards any review or trigger points in an employer’s absence policy. Pregnancy-related illnesses affect people differently, and employers should be as flexible as they can about the amount of sick leave a pregnant employee takes.

If an employee is off work because of a pregnancy-related illness within 4 weeks of her due date, maternity leave begins automatically unless the employee and employer both decide to delay it.

Once maternity leave starts, employees will receive maternity pay instead of sick pay. If an employee is having physical and/or mental health difficulties while pregnant, employers should be understanding and offer adjustments to support their employee.

What paid time off do staff have off for ante-natal appointments?

Pregnant employees are entitled to time off with full pay for ante-natal appointments. These can include medical appointments that relate to a pregnancy, but also classes for pregnancy-related health, fitness or relaxation, and sessions that support the person’s wellbeing and mental health. Paid time off includes travel time.

The law doesn’t specifically state how much time can be taken off for ante-natal appointments, only that it must be a “reasonable amount”.

Acas suggests that pregnant employees tend to need about 10 ante-natal appointments for a first baby, and around 7 for any subsequent babies, although all pregnancies are different and employers should be flexible and show understanding. Employees should give their employer as much notice as possible for these appointments.

What duties do employers have to their employees regarding Shared Parental Leave?

Eligible parents can take up to 50 weeks of shared parental leave. The birth parent must take a minimum of 2 weeks leave after the birth – the remaining time can be shared between the two parents. For example, if a new mother returns to work after 32 weeks of maternity leave, her partner could then take shared parental leave for the remaining 20 weeks.

Similar regulations apply to parents who have adopted a child. Both parents can take shared parental leave at different times or at the same time, and shared parental leave does not have to be taken the moment maternity leave ends.

During shared parental leave, an employee is still entitled to all the terms and conditions of their employment contract, except for their usual salary, as they will be receiving shared parental pay.

Eligible parents can receive up to 37 weeks of statutory shared parental pay, which is currently £187.18 a week or 90% of their average weekly earnings, whichever is lower.

Some employers offer enhanced shared parental leave and pay which is above this rate. Employers must not treat an employee unfairly because they are on or intend to take shared parental leave. Employees should inform their employer in writing at least eight weeks before they want to start their leave.

How must employers deal with flexible working requests?

Employees have a statutory right to request flexible working, which applies from their first day of the job.

Employers can accept, partially accept a request, but can only reject the request if there is a genuine business reason. Employees must put the request in writing to their employer, who must either accept the request in full or consult the employee before making a decision. In some circumstances, refusing a flexible working request could constitute discrimination, particularly if other comparable employees have had their requests for flexible working accepted.

What new redundancy protection do employees who are pregnant or returning from maternity leave have?

The Protection from Redundancy (Pregnancy and Family Leave) Act came into force in April 2024. This extended protection from redundancy to employees from when they inform their employer of their pregnancy to 18 months from the child’s date of birth. During this period, if the employee’s job is at risk, they will have priority status for redeployment and the right to be offered a suitable alternative vacancy.

With an increase in employees having this priority status, it is important for employers undergoing a redundancy or restructuring process to adopt systems for identifying suitable vacancies and weighing up a fair selection criteria. This is because there may be a number of competing employees with priority status who are suitable candidates for any alternative roles.

Martin Searle Solicitors are a campaigning law firm who have been running their annual Mind The Bump campaign to stamp out pregnancy and maternity discrimination in the workplace for the past 20 years. 

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