0.4 Summary of rights and remedies

The right

Main features

Who qualifies?

Rights and remedies covering maternity leave, parental leave, emergency Time Off for Dependants (TOD), paternity leave, adoption leave and requests for flexible working

Automatic sex discrimination

EqA s18

If an effective cause of less favourable treatment is pregnancy/ maternity.

All female workers who are pregnant, employees on maternity leave & workers for 2 weeks after the birth

Sex discrimination (direct and indirect)

EqA s13 (direct), s19 (indirect)

Where there is less favourable treatment on grounds of sex/ marital status or unjustified Provision Criteria or Practice (PCP) which disadvantages one sex

All workers, male and female

Automatic unfair dismissal (ERA s99, MPL Regs 20, PAL Regs 29, ERA s104C)

Automatic unfair dismissal if the only or principal reason is connected with pregnancy, birth, H&S (ERA s100), asserting a statutory right (ERA s 104) or a right to leave for family reasons.

All employees regardless of length of service

Protection from detriment (ERA s47C & 47E, MPL Regs 19, PAL Regs 28)

Covers pregnancy, birth and leave for family and domestic reasons and in relation to flexible working

All employees regardless of length of service

“Ordinary” unfair dismissal (ERA s98)

Where the dismissal is not fair. 

Employees with one year’s service

Written reasons for dismissal (ERA 1996 s92(4) & (4A))

Applies if s/he is dismissed when pregnant or on maternity or adoption leave. 

All employees whether or not they have requested the reasons in writing.

Specific rights and remedies

Time off for antenatal care (ERA ss55-56)

Reasonable paid time off

All pregnant employees.

Agency workers with 12 weeks qualifying service.

Refusal of time off for antenatal care (ERA ss57)

Specific remedy in addition to protection from dismissal, detriment and discrimination

H&S protection (Management of Health and Safety at Work Regulations 1999 and ERA ss66-69)

Protection from risks is the employer’s responsibility, culminating in suspension on full pay

All employees must notify pregnancy in writing to benefit from alterations to work, alternative work & paid suspension. Workers have some H&S protection under MHSW. From 1 October 2011, agency workers who satsfy certain provisions are entitled to the offer of suitable alternative work or pay for an assignment that has been terminated on pregnancy related health and safety grounds.

Breach of H&S provisions

Compensation (ERA s70), automatic unfair dismissal in relation to suspension (MPL Regs 20(3)(c)), sex discrimination

Note:  a dismissed employee may have a claim under ERA s 100 and the employer is also liable to prosecution

Ordinary Maternity Leave (OML) (ERA s71, MPL Regs 4-11)

26 weeks

All employees regardless of length of service

Additional Maternity Leave (AML)(ERA s73, MPL Regs 5-12)

Starts when OML ends and runs for 26 weeks

All employees regardless of length of service

Contractual rights during OML & AML (ERA s71, Reg 9)

All rights set out in contract continue to accrue apart from remuneration

All employees on OML and AML and adoption leave

Redundancy during maternity or adoption leave (MPL Reg 10, PAL Reg 23)

Right to be given first refusal of any suitable alternative job available

All employees on OML and AML and adoption leave

Return to work after OML (ERA s71, MPL Reg 18)

Right to return to the same job

All employees returning from OML

Return to work after AML (ERA s73, MPL Reg 18)

Right to return to the same job.  Only if that is not reasonably practicable may the employer offer a suitable alternative

All employees returning from AML

Statutory Maternity Pay

90% of salary for 6 weeks, £124.88 (or 90%, whichever is the lower) for 33 weeks (£128.73 from April 2011)

All employees and other workers who have NI deducted at source and who have been employed for 26 weeks by the 15^th week before the Expected Week of Childbirth (EWC) & who earn at least £97 a week (£102 from April 2011) in the relevant calculation period

Failure to pay SMP, paternity and adoption pay

ERA Part II (see section 27(1)(c); or HMRC pay if employer does not do so within time limits.

Note:  the employer is also liable to prosecution

Maternity Allowance

Fixed rate £124.88 (or 90%, whichever is the lower) payable by the DWP for 39 weeks (£128.73 from April 2011)

Employed and self employed workers who have worked during or prior to their pregnancy but do not qualify for SMP

Employment and Support Allowance (ESA), means tested benefits

Women who cannot claim SMP or MA may be able to claim ESA or Income Support.

Women who are not entitled to SMP or Maternity Allowance

Parental Leave (ERA s76, MPL Regs 13-18)

Thirteen weeks for each parent for each child under 5 years old (18 weeks if the child is disabled)

Employees with responsibility for a child who have been employed for one year

Parental Leave: unreasonable postponement or refusal

Declaration and compensation under ERA s80

Time Off for Dependants (ERA s57A)

Time off to care for dependant in an emergency

All employees

Refusal of time off for dependants

Declaration and compensation under ERA s57B

Paternity Leave, (ERA s80A, PAL Regs)

2 weeks leave to be taken together

Employees with 26 weeks service by the 15th week before the EWC or the date of matching for adoption

Statutory Paternity Pay

£124.88 pw for 2 weeks

(£128.73 from April 2011)

All employed earners who have 26 weeks service by the 15th week before the EWC or the date of matching for adoption   Average earnings must be £97 pw (£102 from April 11)

Adoption Leave (ERA s75, PAL regs)

52 weeks leave

Employees with 26 weeks service by the date of matching for adoption 

Statutory Adoption Pay

£124.88 for 39 weeks (£128.73 for April 11)

All employed earners who have 26 weeks service by the date of matching for adoption   Average earnings must be £97 pw in the calculation period (from April 2011)

Flexible working (ERA s80F, FW regs)

The right to ask for flexible working in respect of a child under 17, a disabled child under 18 or an adult in need of care.

Employees with 26 weeks’ service.