Answers to Common Legal Questions on Pregnancy Discrimination at Work - Prolegal

Answers to Common Legal Questions on Pregnancy Discrimination at Work

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My partner and I are going to have fertility treatment, what are our rights in the workplace regarding absence, sickness and hopefully maternity?

There is no statutory right to take time off work for infertility investigations or treatment. Requests for time off for medical appointments in connection with fertility treatment should be dealt with in the same way as time off for any other medical appointment. If you become ill as a result of or during infertility treatment you should receive Statutory Sick Pay (SSP) or contractual sick pay in the usual way.

If you believe you have been unfairly treated, you could claim sex discrimination and argue either that a request by a male employee for time off in similar circumstances would not have been refused (direct discrimination) or that the reason for rejecting the request disproportionately disadvantages women and cannot be objectively justified (indirect discrimination). You could also claim constructive dismissal.

A woman undergoing IVF treatment is treated as if she is pregnant when in vitro fertilised eggs are transferred into her uterus. If the treatment is successful and the woman remains pregnant she will remain protected from pregnancy discrimination until the end of her maternity leave. If the treatment is unsuccessful the woman's protection will end two weeks after the end of the pregnancy.

Dismissing a woman or treating her unfavourably because she was undergoing IVF treatment after fertilised eggs are transferred into her uterus, or because she has an illness related to the treatment or pregnancy, is direct pregnancy discrimination.

I’m worried about health and safety at work whilst I am pregnant. What are my rights?

Women working in high risk roles such as the police, fire service or army may be worried that their job exposes their unborn child to unacceptable risk. Employees such as nurses or factory workers might carry out particular tasks that pose a risk, such as lifting, exposure to blood or x-rays, lone working, travelling abroad or working at night.

All employers with female employees of child bearing age whose working conditions may involve risk to the health and safety of a pregnant woman or her baby must carry out a risk assessment. If your employer has a duty to carry out a pregnancy risk assessment and fails to do so, you can claim pregnancy discrimination.

Once you have notified your employer in writing that you are pregnant, have given birth or are breastfeeding, they must take reasonable steps to avoid significant risks to you and your baby and give you information about any risks found and the steps taken to avoid them.

If the risk cannot be avoided in any other way, your employer must temporarily alter your working conditions or hours of work, if this is reasonable. Any fixed salary should stay the same, but your employer can remove shift premiums, night work allowance or overtime pay that you are not entitled to because of a change in hours.

If altering your conditions or hours is not enough to avoid risk, you should be offered suitable alternative employment on your existing terms and conditions. If there is no suitable alternative employment, you should be medically suspended on full pay (though this won’t include overtime or commission).

If your employer changes your conditions, gives you alternative work or suspends you against your wishes because of stereotypical assumptions about pregnant women and there is no risk to your health, you can claim pregnancy discrimination.

If your employer fails to alter your working conditions or hours, offer you suitable alternative employment or medically suspend you on full pay, you can claim compensation.

If you are concerned about risk assessments, changes to your working conditions, job role or maternity suspension, please contact us.

I am on maternity leave with my first child but am now pregnant with my second child, what are my rights?

You are entitled to 52 weeks of Maternity Leave for each new pregnancy. It does not matter how many periods of maternity leave you take or whether they overlap. The earliest you can start your second period of maternity leave is the beginning of the eleventh week before the week your baby is due.

When returning to work from Maternity Leave, you have the right to return to the same job with the same terms and conditions that you had before you left work to go on maternity leave. If you are returning from Additional Maternity Leave (AML), the last 26 weeks of your leave, this right is not absolute as is the case with Ordinary Maternity Leave (OML) (the first 26 weeks of your leave), but your employer must show that it is not reasonably practical to return in the same role. Instead, you should be offered a suitable alternative position.

You are able to return to work if your maternity leave has finished, either by giving your employer notice that you wish to return early, or because your OML or AML has finished. If you do not want to return to work in between each period of maternity leave, you can take Parental Leave. You have an entitlement of 13 weeks, taken in blocks of a week at a time and you can take this leave up until your child is five years old.

If your average earnings are lower than £107 per week during the eight weeks (or two months if paid monthly) before the fifteenth week before your due date, (the calculation period) you will not qualify for Statutory Maternity Pay (SMP).

The first six weeks of your SMP is paid at 90% of your average earnings during the calculation period. The maternity pay for the second period will be calculated upon what you are earning during the first period of maternity leave. This may mean that you may be entitled to a reduced amount or even nothing, if you are beyond the period of SMP.

The same rights apply in respect of returning from maternity leave if you have returned in between the two periods of OML, but if you take OML and AML for your first period of maternity leave and then take a second period of OML consecutively for your second pregnancy, you do not have the automatic right to return to the same job as before. The same would apply as if you had returned after AML for one period of maternity leave.

I believe that I have been passed over for promotion because I am pregnant can you help me?

If you employer does not promote you because you are pregnant, you can claim pregnancy discrimination.

Pregnancy discrimination is any unfavourable treatment because of pregnancy, pregnancy related illness or maternity leave. This would include being passed over for promotion whilst pregnant or whilst on maternity leave. If this has happened to you, please contact us.

My employer wants me to dress in a certain way but this is not comfortable for me at work, what are the rules on maternity wear at work?

There are no specific rules regarding maternity wear at work. However, your employer must take reasonable steps to avoid significant risks to you and your baby. This would include adjusting the uniform or dress policy if complying with it would cause risk.

What happens to holiday entitlements during maternity leave?

During Maternity Leave your statutory holiday entitlement is protected and you continue to build up all your entitlements to paid holiday. Full time employees working 5 days per week are entitled to 28 statutory days per year (including Bank Holidays). This should be carried over into the new holiday year if you have not had opportunity to take your holiday because you have been on Maternity Leave. Bank holidays are treated as holiday leave under the Working Time Regulations so will accrue in the same way.

You might want to add holiday to the beginning or end of your Maternity Leave. Your employer can refuse a request to take holiday on particular days if it is not convenient to the business but must give you notice if they want to refuse leave. Equally they can require you to take your leave on particular days but again must give you notice to do so.

Can maternity rights be shared between both parents?

Maternity Leave must be taken by the mother and Paternity Leave must be taken by the father.

However, Additional Paternity Leave is available to fathers 20 weeks after the baby is born if the mother goes back to work. It must end once the baby is 12 months’ old. The minimum period is 2 weeks and the maximum 26 weeks. The father will receive Statutory Paternity Pay for the unexpired portion of the mother’s entitlement to Statutory Maternity Pay.

What are my maternity rights regarding pay?

To qualify for Statutory Maternity Pay (SMP) you must have been:

  • Employed by the same employer continuously for at least 26 weeks into the 15th week before your baby is due.
  • Earning an average amount which at least equals the lower earnings limit, which is currently £107.00 per week.

If you qualify for SMP, it is paid:

  • For the first 6 weeks at 90% of your average gross weekly earnings with no upper limit.
  • For the remaining 33 weeks at the lower of either the standard rate of £135.45, or 90% of your average gross weekly earnings.

SMP will be paid for a period of 39 weeks and will be paid in the same way and at the same time as you received your wages.

If you do not qualify to receive SMP your employer must fill out an SMP1 form and give this to you. On the form the employer must explain why you are not entitled to SMP. You can use this to claim maternity allowance from the Jobcentre.

My employer is trying to force me to take my maternity leave early, can they do this?

An employee has the right to 26 weeks Ordinary Maternity Leave and 26 weeks Additional Maternity Leave. You can start your Maternity Leave any time from 11 weeks before the beginning of the week when your baby is due.

If you are off work due to pregnancy related illness within four weeks of the expected birth date, your employer can make you start your Maternity Leave then. They cannot force you to start your Maternity Leave any earlier than this.

You do not have to take all of Maternity Leave, but you must take at least 2 weeks after the baby is born. This is known as Compulsory Maternity Leave. If you want to return to work before the end of Additional Maternity Leave, you must give 8 weeks’ notice.

What are my rights surrounding breastfeeding at work?

Upon returning to work, if you have decided that you would like to continue breastfeeding then you should notify your employer in writing. Your employer is then under an obligation to do all that is reasonable to remove or prevent exposure to any significant risk for breastfeeding, and must give you information about the risks, including what action is to be taken to avoid them.

Your employer is required to provide suitable facilities for breastfeeding mothers to rest and to provide adequate rest and meal breaks. The toilets are not suitable facilities.

If you wish to take time off or work flexibly to breastfeed then your employer should try and accommodate this. If your request is refused without a justifiable reason, then you can claim indirect sex discrimination.

I am self-employed. Do I have any protected rights against those I work for?

As a self-employed individual you are not entitled to the same maternity rights as an employee. However if you have contracted to provide work ‘personally’ for your client, which means that you are unable to sub-contract any part of the work or employ your own staff to do it, you may be covered by the Equality Act, which outlaws pregnancy discrimination. This prevents unfavourable treatment because of pregnancy, pregnancy related illness or maternity leave.

Can my employer make me redundant if I am pregnant?

Your employer can make you redundant whilst you are pregnant but they must give you priority for any available suitable alternative employment. This means that you should not be required to compete against other redundant employees for suitable alternative roles.

Your employer has a legal obligation to follow a fair procedure in a redundancy situation. They must consult with you, identify the correct pool of potentially redundant employees and select fairly for redundancy.

Your employer cannot use your pregnancy or maternity leave as a reason for your selection for redundancy. If your employer does base their decision to make you redundant on your pregnancy, pregnancy related illness or maternity you can claim automatic unfair dismissal and pregnancy discrimination.

If you believe you have been unfairly selected for redundancy because of your pregnancy, please contact us for further advice.

How do maternity rights apply to surrogate parents?

Rights for mothers who use a surrogate are not clear. An Employment Tribunal has recently referred the question of maternity leave rights for women using surrogates to the European Court of Justice. At present, there are no specific rights for parents using a surrogate but this decision may require Tribunals to interpret current legislation to grant maternity rights. The government has also confirmed that it is looking into clarifying the law in this area.

If a woman uses a surrogate because a disability prevents her becoming pregnant or carrying a child to full term, she could claim that she has suffered disability discrimination if she is not given maternity leave. An employer can justify unfavourable treatment for a reason arising from disability if they can show that the reason for the treatment is proportionate to their “legitimate aim”.

A father has the right to paternity leave if he is the biological father of the child and will have responsibility for the child’s upbringing.

Parents using surrogates are only entitled to adoption leave if they are issued with an adoption certificate by a UK adoption agency.

Parents using surrogates can take parental leave if they have or will have “parental responsibility” for the child.

The surrogate herself is entitled to maternity leave in the usual way.

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