Ante-Natal Care

MATERNITY

Ante-Natal Care

Ante-natal care is the care of a pregnant employee who has, on the advice of a registered medical practitioner, registered midwife or registered health visitor, made an appointment to attend at any place for the purpose of receiving ante-natal care.

There is no obligation for the employee to provide proof of the appointment in relation to the first visit though she should obtain the employer’s permission to attend. For subsequent appointments however, if the employer so requires, the employee must provide written proof of the appointment (such as an appointment card) and a certificate on notepaper from a registered medical practitioner, midwife or health visitor stating that she is pregnant.

An employer can refuse paid time off if the employee fails to comply with these requirements after being requested to do so by the employer. Time off cannot be otherwise unreasonably refused and the time off needed for ante-natal care is fairly standard for most women who have uncomplicated pregnancies. There are unlikely, therefore, to be many situations when an employer could justify in refusing time off and any unreasonable refusal to grant time off would enable the employee to refer the matter to an Employment Tribunal.

Maternity Leave

This is divided into three categories:

Compulsory maternity leave – 2/4 weeks (depending on type of job)
Ordinary maternity leave – 24/22 weeks
Additional maternity leave – 26 weeks

Compulsory Maternity Leave (CML)

Compulsory maternity leave commences on the day on which childbirth occurs. This is to ensure that a woman has at least two weeks leave after the birth of her baby even if she has technically exhausted her entitlement to 26 weeks ordinary maternity leave in the event of the late arrival of her baby. The two weeks compulsory maternity leave is applicable to most working environments except factories whereby there is a requirement for at least four weeks maternity leave after the birth of the baby.

Ordinary Maternity Leave (OML) & Additional Maternity Leave (AML)

Provided the appropriate notice is given all pregnant employees are entitled to maternity leave of 52 weeks irrespective of the hours they work, length of service and whether permanent or temporary. This is made up of 26 weeks ordinary maternity leave (OML) and 26 weeks additional maternity leave (AML). Where a woman’s fixed term contract expires during ordinary maternity leave and is not renewed, this will be a dismissal. As with any dismissal it will bring her contract and maternity leave to an end though she will still be entitled to statutory maternity pay (SMP) if she qualifies.

Notice Provisions for Maternity Leave

A pregnant employee must notify her employer in or before the 15th week before her expected week of confinement or if that is not reasonably practicable as soon as reasonably practicable. Absence from work because of pregnancy complications may constitute a good reason, particularly if she was unaware of her obligation also if she has just started with a new employer she may not be able to give the appropriate notice.

The pregnant employee should give notice of:

a)The fact that she is pregnant.

b)The expected week of confinement (EWC).

c)The date on which she intends to start her maternity leave, which cannot be before the beginning of the eleventh week before the expected week of confinement. The employer may request that this notice be given in writing.

d)If the Employee intends to return to work before the end of the 52 week maternity leave period she should give at least 8 weeks’ notice, similarly if she wishes to change her previously notified intended date of return (whether bringing it forward or postponing it) the same notice period applies.

The employer must confirm the end date of the maternity leave to the employee within 28 days of receipt of her notification.

Once leave has begun the employer may, no earlier than 21 days before the end of the employee’s maternity period, make a written request for written confirmation of the date of childbirth

The pregnant employee must provide the written confirmation within 21 days of receiving the request. The pregnant employee is not obliged to give an actual date for her return she need only say that she intends to return.

Children and Families Act 2014

The Children and Families Act makes new provisions allowing women to return to work on a limited basis during Maternity Leave without causing the Maternity Leave to end.

Up to a maximum of 10 working days (generally referred to as keeping in touch days, “kit days”) maybe undertaken in the course of a woman’s Maternity Leave without causing the leave to come to a premature end. However no work may be done during the two weeks immediately following childbirth, preserving the Statutory Prohibition on work during that period (Compulsory Maternity Leave).

There is no obligation on any employee to work during her leave and no obligation on the employer to permit her to work and any arrangements for the employee to work would be by mutual agreement within the overall framework of continuing Maternity Leave. The intention behind the change is to permit training and refresher training and other “Keeping in Touch” arrangements, although in some cases there may be an occasion for a short period of substantive work during Maternity Leave.

If the employee returns to work under the keeping in touch provisions during the Statutory Maternity Pay period the regulations provide that SMP is not affected this means that the normal rate of SMP will be payable for any week during which the employee undertakes one or more days of work, there is no entitlement as such under the regulations, its normal wages or salary for days worked and as contractual terms related to pay or effectively suspended during maternity leave, in the absence of any specific agreement, work during maternity leave reached.

The period for payment of SMP can start on any day of the week, so that SMP entitlement will start on the day that Maternity Leave starts rather than beginning of that week or the following week under the old rules, entitlement to SMP still has to calculated in units of hole weeks there is no entitlement to part of a weeks’ SMP, an employer can split SMP for a particular week between two paid periods this is done by dividing the SMP for the week by 7 and appointing it by to the number of days on each prospective pay period.

This would not entitle the employee to any payment over or above whatever SMP may be due. However as there is no requirement to work during this period the employee would be entitled to stipulate payment of the difference between SMP and normal pay as a condition of agreeing to work.

If the employee works for more than 10 days during her Maternity Leave period this will not bring the maternity leave to an end, but no SMP will be payable for any weeks during which work is done once the 10 day limit has been reached.

Statutory Maternity Pay (SMP)

Entitlement to maternity pay depends upon the length of the pregnant employee’s service.

All pregnant employees with at least 26 weeks service at the 14th week before the expected week of confinement, subject to certain other qualifying conditions being met, will receive:

a)Six weeks of maternity benefit at the higher rate

b)Thirty Three at the lower statutory rate

The higher rate of maternity pay is calculated as the weekly rate equivalent to 90% of the average weekly earnings for the period of 8 weeks immediately preceding the 14th week before the expected week of confinement. This will include any lump sum payments, holiday adjustments and overtime payments made in that period. The lower rate of ordinary maternity pay is set by statute.

In order to qualify for maternity pay the employee must meet all the following requirements:

a)The employee must have been continuously employed for a period not less than 26 weeks ending with the week immediately preceding the 14th week before the expected week of confinement

b)The pregnant employee must still be pregnant at week 29

c)The pregnant employee must follow the correct notification procedures as previously mentioned

If an employee is made redundant during AML she is entitled to any suitable alternative work with the equivalent terms and conditions as if she had remained in employment actively during pregnancy.

The employee does not need to give notice of her return date if she intends to return at the end of the OML or AML period. However, if the employee is on additional maternity leave an employer can ask her to notify the actual date of childbirth and whether she intends to return at the end of her additional maternity leave. As long as the employer makes the request in the appropriate form i.e. in writing, the employee must respond otherwise she will lose her protection against detriment or automatic unfair dismissal due to her taking AML. The employer’s request cannot be made any sooner than 21 days before the end of the employee’s OML.

If an employee wants to return early from OML or AML she must give at least 8 weeks’ notice otherwise her employer can postpone her return, though not beyond the end of the relevant maternity leave period.

Please contact ELAS in the event of this scenario.

The employer is responsible for paying ordinary maternity pay on behalf of the DWP. It is paid in the same way as the employee’s salary and is subject to income tax and, whereapplicable, pension contributions. The higher rate of OMP is also subject to national insurance contributions.

There are certain circumstances when an employee may lose their entitlement to OMP:

a)If they return to work at the Company whilst receiving OMP (other than keeping in touch days)

b)If they go outside the European Union at any time whilst receiving OMP

c)If they are taken into legal custody

d)If they start working for another employer

If the pregnant employee is absent for a pregnancy related reason after week 34, but before the intended start date of maternity leave, OMP will be paid automatically if the employee then returns to work they will lose one week’s OMP (at the lower rate) with each week or part week worked.

Maternity Allowance

An employee who is not entitled to SMP who earns at least £30 per week may be entitled to maternity allowance if they have worked for six months in the year and a quarter before the baby is due. The employee should receive a form SMP1 which should be taken along with the form MATB1 (Certificate of Pregnancy) to their local DSS office.

Rights to Return to Work

An employee returning after OML is entitled to return to the same job on the same terms and conditions. Similarly an employee returning after AML is entitled to return to a similar job in which she was previously employed with no detriments to that position.

If it is not reasonably practicable to allow the employee to return to the same job after AML she must be given another job which is suitable for her and appropriate for her to do in the circumstances.

If an employee is made redundant during AML she is entitled to any suitable alternative work with the equivalent terms and conditions as if she had remained in employment actively during pregnancy.

Please contact ELAS in the event of this scenario.

If the employee is unable to return after her leave due to sickness, the normal sick leave procedures at her work place will apply. If she is dismissed during OML or AML but before its expiry the effective date of termination takes place at the time of the dismissal but the employee is still entitled to SMP if applicable until the end of the original maternity leave period.

Rights to Child Friendly Working Hours

An employee may have the right to work part time or other child friendly hours after her baby is born, unless the employer can justify the refusal.

The employer must consider a range of working hours that enable an employee to combine work and childcare such as:

a)Part time working and job sharing.

b)Flexible hours to suit childcare arrangements.

c)Term time working.

d)Working from home.

e)Career breaks.

f)Fixed hours not subject to change by the employer at short notice.

An employer may be guilty of indirect sex discrimination if a considerably smaller proportion of woman than men can work full time or child unfriendly hours, or the woman cannot in practice work her old hours or the woman has suffered a detriment as a result of the refusal and the employer cannot justify the refusal to work alternative hours. The rules regarding maternity leave have always been very complex. The Maternity and Parental Leave Regulations 1999 issued under the Employment Relations Act 1999 have simplified the law to some extent but the area of maternity rights is extremely complex. In the event you are strongly advised at each and every process of the maternity period to take advice from us via our 24 hour Helpline.

Remember – if in doubt call the 24 hour Helpline Service

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