Knowing your rights at work while pregnant and on maternity leave – advice from CJCH Solicitors (AD)

Paid collaboration with CJCH Solicitors

Cardiff Mummy Says is delighted to be working with CJCH Solicitors on an ongoing series of articles exploring legal matters relating to families. The series has already covered how to appeal a school admissions decision if your child didn’t get into your first-choice school; why it’s so important for parents to make a will; as well as where families of school-age children stand if they go on a term-time holiday; workplace rights for parents; and asking what legal rights grandparents have to see their grandchildren.

This month, Heather Seward from CJCH’s Barry practice offers her expertise on knowing your legal rights at work while pregnant and on maternity leave.

Please note that while all articles are written in good faith by legal experts using the latest laws in Wales and England each legal case is different and these articles are not a substitute for individual legal advice.

CJCH cannot comment in these articles on individual cases. However they are delighted to offer Cardiff Mummy Says readers a free initial ‘case validation’ assessment of their matter (T&C apply, assessment may take place in person, via telephone or email). If you’re unsure if your matter can be pursued then get in touch via email or telephone to provide the facts of your case, and the team will assess the matter free of charge and confirm if they are able to act for you.

CJCH are also offering Cardiff Mummy Says readers a 10% discount on their legal services (excludes external costs such as court costs and third party services and fees and does not apply to wills). Just quote Cardiff Mummy when getting in touch.

CJCH is a Wales top-20 law firm with headquarters in Cardiff, has grown to more than 100 members of staff. Its expertise covers the full range of legal services including commercial, corporate, dispute resolution, intellectual property, mental health, employment law, motoring, property, family, child care, crime, wills and probate.

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The Equality Act 2010 protects employees from discrimination and victimisation because of pregnancy and maternity. The law recognises that this can be a difficult time for mothers-to-be and new mothers and The Equality Act has put in place protection for women when they often feel at their most vulnerable. This protected period starts from when you become pregnant to until your maternity leave ends, and you return to work.

Once the protection period ends however, it would still be unlawful to treat you unfairly due to any matters arising or linked to your pregnancy, maternity or breast feeding.

Sadly, many women believe that they have experienced unfavourable treatment at work due to their pregnancy. If some form of treatment impacts negatively on you because of your pregnancy or maternity irrelevant of whether other staff are treated similarly, it may be discriminatory.

For example, you have been suffering morning sickness and do not feel able to travel into work that morning. You call work to explain the sickness due to your pregnancy however your manager thinks that you are over stating your sickness and instructs you to come into work.

This could be considered unfavourable treatment due to your pregnancy.

Some women also report that they feel that they have suffered a detriment or disadvantage due to their pregnancy. This is recognised under the Equality Act as victimisation.

For example, there is training on offer at work and the training would bolster your CV and could help strengthen your position for promotions in the future. Your manager however tells you that it is not ‘cost effective’ for you to attend the training as you are pregnant and will be leaving work for maternity in four months’ time.

Denying you the opportunity of attending the training means that you would have suffered a detriment and a form of victimisation at work.

You may also become subject to victimisation if you suffer a disadvantage, damage, harm or loss because you: report an allegation of discrimination, support a complaint of discrimination or give evidence relating to a complaint.

Here are answers to some of the most common queries women have regarding the impact of pregnancy and maternity on their employment.

What if I am applying for jobs and I have realised I am pregnant. Do I have to tell my prospective employers of my pregnancy?

No. You do not have to tell your prospective employers you are pregnant during the recruitment process. If you volunteer the information or you are obviously pregnant or appear pregnant interviewers should make any decision based on your CV, qualifications and experience and should not be influenced by the fact that you are pregnant.

If you get the job, then you must tell the employer of your pregnancy if there are any health and safety reasons which could affect you during your pregnancy connected to the role or you need to take time off for antenatal appointments.

It can benefit you telling your employer early as your rights as a pregnant employee for health and safety fully come into effect at that point.

Generally, the rule is that you should tell your employer/give notice of your pregnancy and your intention to take maternity leave 15 weeks before the baby’s due date (about six months into the pregnancy). As an eligible employee you need to give the correct notice to your employer to qualify for Statutory Maternity Pay and Maternity Leave.

What if I am receiving IVF or fertility treatment. Am I protected at this time under the Equality Act for pregnancy and maternity?

No. You are not protected under the pregnancy and maternity characteristic of the Equality Act until you are actually pregnant. However unfair treatment of a woman undergoing IVF or fertility treatment could still amount to sex discrimination.

Do I have to take leave/holiday to attend ante natal appointments?

No. Pregnant workers (and their partners) are entitled to time off for antenatal appointments.

Antenatal care is not simply midwife and hospital appointments. You can also be entitled to time off for antenatal or parenting classes if they have been recommended by a midwife. The paid time off for antenatal care must be at your normal rate of pay i.e. you would still receive your normal monthly salary despite the time off work for these appointments.

Can you be sacked whilst pregnant in the workplace?

You can’t be sacked for being pregnant. However completely unconnected disciplinary issues can still be handled during your pregnancy.

I have a company car which is part of my terms and conditions of employment. Will I lose the company car when I start on maternity leave?

No. You should be entitled to the same terms and conditions of your employment while pregnant or on maternity leave unless the company car was provided for business use only.

Will I lose my holiday allowance for the year that I am off on maternity leave?

No, you are entitled to the same amount of paid annual leave as you would have been entitled if you were in work. Leave can be taken before or after maternity leave. Some women may choose to use it to extend the time off work straight after maternity leave or by using the build-up of leave to create a phased return to work e.g. working three days a week and taking off the other two days as paid annual leave.

Will my employer stop paying into my pension while I am on maternity leave?

Your employer will pay the same level of contributions to your workplace pension for the first 26 weeks of maternity leave, known as ordinary maternity leave. Your employer only needs to pay into the pension while the employee is being paid and therefore if you decided to take the full entitlement to maternity leave for 52 weeks then your employer would not need to pay any pension contributions once your statutory maternity pay ends after 39 weeks (the 13-week gap) unless your contract of employment states otherwise.

If there is an annual pay increase in work, will I also be entitled to this whilst I am on maternity leave?

Yes, if you would have been entitled to this if not on maternity leave then any increase in wages should be worked out in your maternity pay.

Can I still receive a bonus on maternity leave?

If you would have been entitled to a bonus if not on maternity leave then you should be still entitled to the same, although a performance-based bonus could be reduced pro rata for your time on maternity leave during the bonus period.

A promotion has come up at work, can I still apply when I am on maternity leave?

Yes. It would be discriminatory for your employer not to tell you about suitable job vacancies because you are pregnant or on maternity leave. It would also be discriminatory for your application to be turned down because you are pregnant or on maternity leave or for you to be discouraged from applying because you are pregnant or on maternity leave.

Can I go back to my old job at the end of my maternity leave?

You have a right to return to your job if you take up to 26 weeks (six months) of maternity leave if the job still exists and depending on how your employment contract defines the ‘job’. If you take more maternity leave after the 26 weeks, you will have a right to your job or a similar job (if it’s not possible to have your old job back). Similar means the same or better terms and conditions.

If you decide to return to work early or postpone returning to work, then you should give your employers at least eight weeks’ notice of the same.

When I return to work I will still be breastfeeding. Does my employer have to provide somewhere for me to breastfeed?

You should advise your employer before any Keeping in Touch days or your return to work that you will need somewhere suitable to breastfeed or express milk, and the time to do it. Your employer doesn’t have to provide a place to breastfeed but Health and Safety requirements state that employers must offer breastfeeding employers a place to ‘rest’ at work. It is quite clear however that the staff toilets would not be considered a suitable place for breastfeeding or expressing milk and therefore employers will need to consider providing a hygienic and safe place for you to breastfeed and or express milk. Treating a woman returning to work who wants to breastfeed unfavourably is likely to amount to discrimination at work.

Can I do any work for my employer while on maternity leave?

Employers can agree with you to complete up to 10 Keeping in Touch days. The type of work and pay are to be agreed between you and your employer. These days can be helpful to take for training and team meetings and to help you to decide any request for flexible working in the future. Your rights to maternity leave and your Statutory Maternity Pay should not be affected by taking Keeping in Touch days. However, if you take more that 10 Keeping in Touch days then you risk ending your maternity leave and pay.

Can my employer contact me while I am on maternity leave?

Your employer can keep in ‘reasonable contact’ with you during maternity leave. It is important for both you and your employers to communicate while on maternity leave. How you are contacted and how often you wish to be consulted about matters at work can be discussed prior to you starting your period of maternity leave. Having contact with your employers can be important for you to be kept updated about training, promotions and opportunities. If, however, you feel that you are being constantly pressured by your employer to end maternity leave and return to work early or confirm early when you are returning to work then this could potentially amount to a claim for discrimination.

Can I ask for flexible working when I return to work?

If you have worked for your employer continuously for 26 weeks you have a right to ask if you can work flexibly on your return to work. You can ask an employer to take into account the period of maternity leave as continuous service. Flexible working may be to reduce hours, change which hours you work or work the same number of hours over fewer days. Or, this could be a request to go part-time or job share. Your employer should agree flexible working where it can accommodate but your employer can also turn it down on business grounds. Your employer however has to be careful not to discriminate.

What to do if you feel that you are being treated unfairly at work or on maternity leave?

If you feel that you have been treated unfairly at work either during your pregnancy or maternity, then you should talk to your employer or HR to see if the issue can be resolved. If the matter is not dealt with by your employer, then you could consider contacting your work union for advice/support or seek independent legal advice from an employment specialist.