Alison Clarke explains the maternity rights minefield and points out pitfalls for businesses
Almost half the working mothers in a recent Equal Opportunities Commission survey said they had experienced some form of discrimination while pregnant or on maternity leave.
The survey of 1,000 new or expectant mothers also found that:
* one in five said they had lost out financially due to discrimination, including having their salaries cut
* one in 20 said they had been under pressure to hand in their notice as soon as they announced they were pregnant
* half felt that employers didn't know how to manage pregnancy in the workplace.
While some employers knowingly flout the law, many others simply don't know - or struggle to understand - what their responsibilities are under the complex maternity regulations. Failing to fulfil an employee's rights can be costly, however: successful claims for sex discrimination have unlimited compensation.
What common mistakes do employers make?
Many employers fail to understand that pregnant women have special protection under the law. Among other things, this means you can neither refuse to employ a woman, nor dismiss her, just because she is pregnant or on maternity leave.
Equally, you must not put her at a disadvantage in any way, for instance, by refusing her training, allocating her a less interesting job, or excluding her from a business trip.
Employers sometimes do not realise that a woman is still their employee during her maternity leave, so most of her rights (except for pay) under her contract continue - for instance, the right to accrued benefits such as holidays or pension contributions.
How can these mistakes be avoided?
You can avoid making common mistakes through forward planning. Your best bet is to talk things through with your pregnant employee as soon as you know that she is pregnant and plan how you are going to look after her needs, while at the same time ensuring that your business needs are met.
What claims can a woman make against you?
Depending on the circumstances, a woman can bring various claims against an employer that she feels has not fulfilled her rights when pregnant or on returning to work after having her child. These include sex discrimination, unfair and wrongful dismissal, breach of contract, unlawful deduction of wages and breach of a statutory right.
Your best bet is to err on the side of generosity - it may well save you money (and a lot of hassle) in the long run.
Who qualifies?
All pregnant employees are entitled to 26 weeks' ordinary maternity leave (OML). But if they have worked for you for 26 weeks by the 15th week before the baby is due, then they will also be entitled to additional maternity leave (AML) of 26 weeks. This starts at the end of OML.
If the woman has worked for you for 26 weeks by the 15th week before the baby is due and earns more than 79 (82 from April) per week, the chances are that she will be entitled to statutory maternity pay (SMP).
This is paid at 90 per cent of average weekly earnings for the first six weeks of OML, followed by a flat rate (106 from April) for the remaining 20 weeks. If, however, 90 per cent of her earnings are less than the flat rate, then the flat rate is what she receives.
Is SMP difficult to administer?
Yes, mainly because you have to work out the woman's average weekly earnings over an eight-week period (known as the relevant period) that ends with the qualifying week - the 15th week before the week the baby is due.
You have to use different formulae depending on whether she is paid weekly, monthly or on an irregular basis. If the baby is premature there is another formula again. The same is the case for agency and seasonal workers.
From April you will have to adjust these calculations if you award a pay rise that comes into effect any time between the start of the relevant period and the end of her maternity leave.
What are the notification requirements?
At least 15 weeks before the baby is due the woman has to tell you that she is pregnant, the date when the baby is due and the date when she intends to start her maternity leave. For SMP she just has to give you 28 days' notice of when she wants her pay to start.
You have to tell the woman when she is due to return to work - either 26 or 52 weeks from the date when her OML or AML is due to start (plus her holiday entitlement).
Is the woman entitled to holidays?
Yes, so you have to calculate what she's owed, whether it's under her contract or the 20 statutory days to which she is entitled under the Working Time Regulations. Women on AML are only entitled to holiday accrued under the regulations.
What about health and safety rules?
You have to do a health and safety assessment of anyone of 'childbearing age', whether pregnant or not. Ideally, this should be when they start work.
Once the woman has told you that she's pregnant (or given birth in the last six months or is breastfeeding), then you have to do another assessment.
Can you make the woman redundant?
Yes, as long as it's not because she's pregnant or on maternity leave. But you have to give her priority over other staff when offering suitable, alternative work.
What rights does the woman have on her return?
After OML, a woman is entitled to return to exactly the same job that she was doing before she left.
A similar right applies after AML, but with the qualification that, if you cannot offer her the same job, you can offer another that is 'suitable' and 'appropriate'.
If you employ five people or fewer and you have a good business reason for not giving the woman her job back, then she loses her right to return.
Can she demand to return part time?
No, but she can ask to work flexibly and you need to have a good business reason for refusing.
Alison Clarke is an employment lawyer and freelance journalist
MORE INFORMATION
* Maternity Pay and Leave: A Guide for Employers, by Alison Clarke (5.00 from www.maternity-pay.co.uk, tel: 0845 456 9420)
* Websites containing useful information:www.eoc.org.ukwww.dti.gov.ukwww.inlandrevenue.gov.ukwww.dwp.gov. * The Inland Revenue employers' helpline (0845 7 143 143) can also provide information about SMP.
