5 common maternity mistakes employers make

Five top maternity mistakes by employers

Confusions about pregnancy-related sickness

Some women experience health problems caused or made worse by their pregnancy, and have to take a lot of sick leave.  You may think that this can be taken into account in the same way as other sick leave. For example, if there is a sick leave record which is used in making decisions, perhaps you have included pregnancy-related sickness in that record. In fact, pregnancy-related sickness has to be ignored. It is specially protected and you shouldn’t record it with other sickness. It will use up sick pay, but otherwise it cannot be taken into account in any way which affects a woman badly – to do so would be sex discrimination.

You can make a woman start her maternity leave four weeks before a baby is due if she is absent from work for pregnancy-related reasons (pregnancy-related sickness or health and safety grounds connected with the pregnancy).

You cannot force a woman to start her maternity leave any earlier than four weeks before the birth, although it does start automatically the day after a baby is born if this happens before maternity leave has started.

More information about when maternity leave starts is at www.businesslink.gov.uk

Failing to act on health and safety considerations

Employers often fail to carry out a risk assessment when they should, or fail to follow up on the findings of a risk assessment. Once a woman has told you that she is pregnant in writing, there may be an obligation to carry out a health and safety risk assessment. A general risk assessment for pregnant women in the workplace should be done anyway, if you employ women of childbearing age. A specific one for a pregnant employee should be done if there is evidence of a risk – this could be because the woman’s doctor has expressed concerns about what she should be doing at work. Following a risk assessment, steps must be taken to remove any risks. This could involve giving a woman different duties for a while, cutting her hours or even suspending her from work entirely. But she must be paid her normal pay, so that she does not lose out. Normally, something safe can be found in the workplace to avoid the problem.

 See www.hse.gov.uk for more information about risk assessments.

Getting it wrong on maternity leave and pay

Mistakes about maternity leave are often to do with how long it lasts. A woman is entitled to a year off, regardless of how long she has worked for you. However, maternity pay currently lasts for 39 weeks (9 months). A woman does not have to come back when her pay finishes. It is up to her when she returns, although if she is going to come back before the year is up, then technically she should give you at least 8 weeks notice in writing.

It’s a good idea to have a discussion with your employee before she goes on maternity leave, so that she knows what she needs to do and when – it may be written in your maternity policies, but reading these, and taking in all the information, isn’t always easy. It would be sex discrimination to try to force a woman to come back early or to pressure her into making a decision. On the other hand, if she comes back early and hasn’t given you the 8 weeks notice, you could be within your rights to tell her that she cannot come back until 8 weeks have passed, or until her maternity leave would have ended, whichever is earliest.

Some employers tell women that statutory maternity pay has to be repaid if they don’t return to work. This is never, ever correct. If you pay a woman extra maternity pay, on top of the statutory amount (occupational or contractual maternity pay), you can have conditions attached to that which may mean she does have to repay the extra if she doesn’t return to work for a certain time. However, these conditions must be part of her contract before she starts her maternity leave, and they can only apply to the extra, never to statutory maternity pay.

More information about statutory maternity pay is at www.businesslink.gov.uk and in the Revenue guidance on www.hmrc.gov.uk The Revenue also has local rate helplines  to help employers with statutory payment issues, including statutory maternity pay.

Not staying in touch with a woman on maternity leave

You may think that you are not supposed to have any contact with a woman on maternity leave. Of course it is not a good idea to hassle someone who is about to give birth or who is at home coping with a new baby. On the other hand, you must keep a woman informed about things which would be useful for her to know. It could be sex discrimination if a woman loses out because her employer fails to tell her about developments in the workplace. It may help to talk to your employee about what sort of contact she would prefer (for example, email, phone calls, letters).

A woman is allowed to work for up to ten Keeping in Touch (KIT) days without it breaking her maternity leave. You do not have to offer KIT days, and a woman does not have to accept them. Discussing possible KIT days before maternity leave can help, although your employee may not be able to decide whether she definitely wants to do KIT days until she has had her baby.

See www.businesslink.gov.uk for more information.

Giving a woman a different job if she has been on maternity leave of more than six months

A woman has an automatic right to return to her original job if she has only taken ‘ordinary maternity leave’ (the first six months). After the first six months, her right is to return to the original job unless ‘it is not reasonably practicable’. However, this doesn’t mean that it is fine for you to just give a new mother a different job. ‘Not reasonably practicable’ is a strong test. If a woman’s original job still exists, she probably has the right to return to it. A suitable alternative job must compare to the woman’s original job in terms and conditions of work and in the content of the job and skills required.

If a woman’s job doesn’t exist any more and there is no suitable alternative, this could be a redundancy situation.

See www.businesslink.gov.uk for more information.