The top ten maternity myths – what does employment law REALLY say?
What are your legal rights at work when you fall pregnant? We look at the top ten maternity myths and what employment law REALLY says.
Employment law can be confusing, employers often get it wrong but individuals also often lack awareness of valuable legal rights. While there is plenty of information available if you know where to look, navigating through the highly technical intricacies of employment law isn’t easy.
As. result, misunderstandings take hold and myths grow up about what the law does and doesn’t say.
The top ten maternity myths – what does employment law REALLY say?
To help end the confusion, Katy Meves from Springhouse Solicitors busts the top ten maternity myths with a simple explanation of the actual legal position.
1) Smaller employers are exempt from pregnancy and maternity laws
Wrong! Exactly the same rules apply to all employers regardless of size. While there has been talk by politicians in recent years to relax some of the rules for so-called micro employers (those with less than 10 employees) these proposals have never got out of the starting blocks and seem unlikely to be resurrected.
2) I need to tell a potential employer I’m pregnant if I’m applying for a job
Wrong! There is no reason why you cannot apply for a position while you are pregnant and this is not something you need to disclose.
In the past employers have tried to argue that lack of disclosure at interview by a female candidate, about her pregnancy, suggested a lack of integrity and this was the reason why she was dismissed when they found out – not the fact that she was pregnant per se.
The courts have given this argument short shrift and held that such a dismissal was unlawful discrimination. In the UK, dismissal because of pregnancy or any reason connected to it is also automatically unfair. Such a claim can be brought regardless of how long you have been employed.
3) It’s ok for a potential employer to ask me about my family plans at interview
Wrong! Employers should not be asking any questions enquiring if you have children or are intending to. If unsuccessful candidates have been asked questions about family plans this could amount to supporting evidence of a discriminatory motive in the selection process which the employer would need to rebut.
4) I won’t get any maternity leave if I haven’t worked for my employer for long enough
All employees (not other types of workers) are entitled to 12 months’ statutory maternity leave from day one of employment, regardless of the number of hours they work or the amount they earn.
However, certain eligibility requirements relating to minimum earnings and length of service must be met in order to qualify for statutory maternity pay.
5) I can’t benefit from a pay rise while I’m on maternity leave
Wrong! When you return to work you will be entitled to the terms and conditions which would have applied had you not been absent on maternity leave so you should be receiving the same rate as your colleagues who were not absent on maternity leave.
If you are getting statutory maternity pay (SMP), you will receive 90% of your average weekly earnings for the first six weeks. This rate is set by looking back over an eight week period which ends with the 15th week before childbirth, known as the “relevant period”.
However, if your employer awards a pay rise at any time before the end of your statutory maternity period then they have to recalculate your SMP so you will be entitled to a top up payment.
6) I’m still entitled to my bonus while I’m on maternity leave
It depends! A woman is entitled to all her contractual benefits (excluding her normal remuneration) while on maternity leave so the answer depends on whether the bonus can be said to be remuneration and/or whether it is a contractual entitlement or not.
There has been a lot of litigation on this question over the years and the outcome is always highly fact specific. Employers pay bonuses for all types of reasons, to reward past work, to incentivise for the future, to encourage loyalty, to reflect company/department/individual performance.
Much will depend on the nature of the bonus and the relevant documentation (if any) or previous course of dealings and what you have been told. However, it is now pretty clear from the case law that it is lawful for an employer to pro rate a bonus to reflect the time a woman is absent on maternity leave.
7) I’ll lose my holiday entitlement while I’m on maternity leave
Wrong! You continue to accrue holiday while on maternity leave. You can’t “mix” types of leave so, if you can’t take all the annual leave you are entitled to because you are absent on maternity leave, then you are entitled to carry it over into a subsequent holiday year.
Many employers will require employees to take their accrued leave before the go on maternity leave and, it may be less disruptive for the business and more financially beneficial for the employee (if they have had or are in a period of unpaid maternity leave) to take all the leave which has accrued before they return
8) I can’t be made redundant if I’m pregnant or on maternity leave
Wrong! Many employers believe this is the case but, if there is a genuine redundancy situation and you are fairly selected for redundancy using objective selection criteria then your employment can be fairly terminated.
However, any redundancy selection criteria must not take into account any reasons connected to pregnancy such as pregnancy related illness. Those on maternity leave (and other types of statutory parental leave) must go to the front of the queue if there are any suitable alternative vacancies being distributed in order to avoid the redundancies.
This ‘preferential treatment’ does not apply to those who are pregnant but still working, only to those whose leave has started.
9) My employer isn’t allowed to contact me while I’m on maternity leave
Wrong! An employer can, and indeed should, maintain a reasonable amount of contact in order to keep those on maternity leave up to date about any developments within the business. For example, it will be in a woman’s interest to receive information about pay rises, bonuses, internal vacancies and any redundancies or reorganisation.
Failure to do so could be considered sex discrimination. Ideally an employer will agree before maternity leave starts how much contact an individual wants e.g. do they want to hear about social events or only business issues and how they want it e.g. by email only.
10) An employer can require me to do a different job when I come back if I’ve been on maternity leave for 12 months or more
Although we talk about the right to take maternity “leave”, in fact perhaps the most valuable right the law gives to a mother is the right to return to the same job. Your employer must keep your job open for you and cannot decide that they like the maternity cover better and don’t want you back!
The only exception is where this is not reasonably practicable. This might be the case where the job no longer exists because of a reorganisation. In those circumstances a woman must be given another suitable job which is appropriate for her.
How many maternity myths have you heard?
These are just ten of the most common maternity myths. How many of them have you heard? Or have you heard others? If you need more advice on your legal position after you become pregnant, we recommend reading these articles:
- Your employment rights during maternity leave
- Your legal rights when you return to work after maternity leave
- Your working rights after maternity leave
- Returning from maternity leave – your legal FAQs
Katy Meves is Partner at Springhouse Solicitors, a niche employment law firm.
Photo by Leandro Cesar Santana