URN No: 07/533/C1
7. Keeping in Touch, Planning Ahead and Notice Periods
8. Return to Work After Maternity Leave
9. Health and Safety at Work
Key FactsBefore taking maternity leaveTo take maternity leave an employee should inform her employer no later than the end of the 15th week before the week the baby is due (or as soon as is reasonably practicable) that: (i) she is pregnant; (ii) when the expected week of childbirth is; (iii) when she wants her maternity leave to start An employer must notify the employee of the end date of her maternity leave within 28 days of receiving her notification She can change the date she starts her maternity leave as long as she gives 28 days’ notice to her employer The employee can give notice for her statutory maternity pay at the same time During maternity leave The employer may make contact with the employee (and vice-versa) while she’s on maternity leave, as long as the amount and type of contact is not unreasonable, to discuss a range of issues – eg to discuss her plans for returning to work, or to keep her informed of important developments at the workplace. The employee should be informed of any relevant promotion opportunities or job vacancies that arise during maternity leave. The employee can do up to 10 days’ work under her contract of employment, as long as both she and her employer have agreed for this to happen, and agree on what work is to be done and how much she will be paid for it. Returning to WorkIf she returns at the end of her full 52 weeks of maternity leave and has not told her employer that she wishes to come back at any other time, she does not need to provide any further notice. The employee can change the dates of her return to work as long as she gives eight weeks’ notice to her employer. If the employee decides not to return to work at the end of her maternity leave she is entitled to continue to receive her full amount of statutory maternity leave and pay. She must give the employer at least the notice required by her contract or, where there is none, the statutory notice (for employees: see DirectGov guidance on giving notice ; for employers: see Business Link advice on correct periods of notice). |
Although the law only requires the woman to tell her employer that she is pregnant and will take maternity leave by the end of the fifteenth week before the expected week of birth, she and her employer will both benefit if she shares the news as early as possible before then. This will mean that her employer knows that she is entitled to paid time off for antenatal care, and that particular health and safety and sex discrimination rules apply. It will also help the employer plan ahead and make arrangements for covering the period while the employee is away.
To claim maternity leave an employee should notify her employer no later than the end of the fifteenth week before the expected week of childbirth of:
Her maternity leave can start no earlier than the beginning of the 11th week before the expected week of childbirth (although it could start automatically before then if she gives birth early). The expected date of birth is given on the MATB1 form that the employee will have been given by her healthcare provider.
Employers may find it helpful to use Business Link’s interactive tool “Managing Expectant and New Mothers at Work” . By answering a simple series of questions most employers can obtain a guide to their rights and responsibilities towards new or expectant mothers.
Many employees will find it convenient to give notice of the date for the start of statutory maternity pay (SMP) at the same time. The date for the start of SMP can be the same as the start-date for maternity leave. DWP provide more information on claiming SMP and the evidence the employer will need to see.
If the employee is claiming maternity leave but not SMP she only needs to provide a maternity certificate if the employer requests it.
If an employee doesn’t give her employer the required notification for the start of maternity leave she may lose her right to start maternity leave on her chosen date. Employers are only required to make exceptions to this where it was not reasonably practicable for the notice to have been given any earlier.
Once a woman has notified her employer of the date she wishes to start her maternity leave, she can change this date as long as she notifies her employer of the new start date by whichever is the earlier of either 28 days before the date she originally intended to start her leave or 28 days before the new date she wants to start her leave.
But if it is not reasonably practicable for her to give this much notice (for example if the baby is born early and she has to start her leave straight away) then she does not have to. In these circumstances she should give her employer as much notice as possible. The notification should be in writing if the employer requests this.
Once an employee has provided the necessary notice of the intended start date of her leave, her employer should in turn notify the employee of the date on which the leave will end. This will normally be 52 weeks (one year) from the start of maternity leave.
Employers may use a standard letter (see model maternity leave acknowledgement letter – under ‘actions’)
The employer should notify the employee of the end date within 28 days of the employee’s notification, unless the employee has since changed the date her leave will start. In that case, the employer must notify her of the end date within 28 days of the start of her leave.
If an employee isn’t properly notified by her employer of the date of the end of her maternity leave, and subsequently does not return to work on time, she may have protection against victimisation and dismissal for this reason. In addition, if the employee wishes to change her return dates, she may not be obliged to comply with the notice requirements if her employer has not told her when her leave should end.
The maternity leave period normally starts on the date which the employee has notified to her employer as the date she intends it to start. There are some exceptions to this rule, as set out below:
Absence due to childbirth before the intended start date:
If childbirth occurs before the date the employee has notified (or before she has notified any date) the maternity leave period starts automatically on the day after the date of the birth. This happens even if the birth takes place before the start of the 11th week before the birth was originally expected. In this circumstance the woman should give her employer notice – in writing if the employer requests it – of the date of the birth if it has already taken place, and the date the birth was originally expected. Evidence of the actual and expected dates of birth can be provided together on the maternity certificate (Mat B1) provided by the doctor or midwife.
Absence for a pregnancy-related reason before the intended start date.
An employee who is absent from work due to illness will normally be able to take sick leave until she starts maternity leave on the date notified to her employer. However, if the illness is related to her pregnancy, the maternity leave period starts automatically on the day after the first day of absence following the beginning of the fourth week before the expected week of childbirth.
If an employee resigns or is dismissed before the date she has notified, or before she has notified a date, she loses the right to maternity leave, but she will still be eligible for SMP if she is employed after the 15th week before the expected week of childbirth.
Unless otherwise notified, the date on which an employee returns to work will normally be the first working day 52 weeks after her maternity leave began. This is because all employees are entitled to 26 weeks’ Ordinary Maternity Leave and a further 26 weeks’ Additional Maternity Leave (see Maternity Leave).
If the employee wishes to return to work before the end of her full maternity leave period (this will normally be the end date the employer confirmed to her before she went on leave), she must give her employer eight weeks’ notice of her return to work. This notice requirement applies during both ordinary and additional maternity leave. The notice period is the minimum the employer is entitled to expect, but the employer can of course accept less or no notice at their discretion.
If the employee attempts to return to work earlier than the end of her maternity leave without giving her employer eight weeks’ notice, the employer may postpone her return until the full eight weeks’ notice has been given. However, the employer may not postpone her return to a date later than the end of her maternity leave period.
An employee whose return has been postponed under these circumstances is not entitled to receive wages or salary if she returns to work during the period of postponement. However, if the employer didn’t provide appropriate notification of when her leave should end (see above) the employee is not obliged to give the eight weeks’ notice.
For example, if an employee was due to return to work after 52 weeks’ maternity leave on 1 August, but then decided to return to work after 39 weeks of leave (that is, on 9 May) she would need to give her employer eight weeks’ notice of the new date (that is, by 14 March).
An employee who has notified her employer that she wishes to return to work before the end of her maternity leave, as set out in the paragraphs above, is entitled to change her mind. However, in these circumstances she should give her employer notice of this new, later, date of return at least eight weeks before the earlier date.
For example, if, having started her maternity leave, an employee decides that she does not wish to take her full entitlement of 52 weeks and gives her employer notice that she will return after six months (for example, on 1 October) she can still change her mind and tell her employer that she will take a longer period away – up to the full year of maternity leave – as long as she gives eight weeks’ notice before the earlier date (in this case, eight weeks before 1 October – ie 6th August).
An employee who does not wish to return to work after her maternity leave must give her employer the notice of termination required by her contract of employment. However, it will usually help her employer if she can give as much notice as possible. As long as she specifies the date on which she wishes to terminate the contract (this could be the first day she was due back at work after maternity leave) this will not, of itself, mean that she is no longer entitled to maternity leave or pay for the rest of the maternity leave period. The Government therefore encourages women who do not wish to return to work after their maternity leave to give their employers as much notice as possible, pointing out that doing so will not automatically end their leave or pay.
During the maternity leave period an employer may make reasonable contact with an employee, and in the same way an employee may make contact with her employer. The frequency and nature of the contact will depend on a number of factors, such as: the nature of the work and the employee’s post, any agreement that the employer and employee might have reached before maternity leave began as to contact; and whether either party needs to communicate important information to the other, such as for example news of changes at the workplace that might affect the employee on her return.
The contact between employer or employee can be made in any way that best suits either or both of them. For example, it could be by telephone, by email, by letter, involving the employee making a visit to the workplace, or in other ways.
Employers should note that they must, in any event, keep the employee informed of promotion opportunities and other information relating to her job that she would normally be made aware of if she was working.
Employers and employees will often find it helpful, before maternity leave starts, to discuss arrangements for staying in touch with each other. This might include agreements on the way in which contact will happen, how often, and who will initiate the contact. It might also cover the reasons for making contact and the types of things that could be discussed.
What constitutes “reasonable” contact will vary according to the circumstances. Some women will be happy to stay in close touch with the workplace and will not mind frequent contact with the employer. Others, however, will prefer to keep such contact to a minimum.
Employees may, by agreement with their employer, do up to ten days’ work – known as “Keeping in Touch days” - under their contract of employment during the maternity leave period. Such days are different to the reasonable contact that employers and employees may make with one another – described in the section above – as during Keeping in Touch days employees can actually carry out work for the employer, for which they will be paid.
If the work carried out during one shift straddles midnight it may be counted as one day for the purposes of Keeping in Touch days, if the employee's normal working pattern is such that this would fall within a normal working day.
Any work done on any day during the maternity pay or maternity leave period will count as a whole Keeping in Touch day, up to the 10-day maximum. In other words, if an employee comes in for a one-hour training session and does no other work that day, she will have used one of her Keeping in Touch days.
The type of work that the employee undertakes on Keeping in Touch days is a matter for agreement between the two parties. They may be used for any activity which would ordinarily be classed as work under the woman’s contract, for which she would be paid, but could be particularly useful in enabling a woman to attend a conference, undertake a training activity or attend for a team meeting for example.
Work during maternity leave may only take place by agreement between both employer and employee. An employer may not require an employee to work during maternity leave if she does not wish to, nor does an employee have the right to work Keeping in Touch days if her employer does not agree to them.
If the employer offers an employee the opportunity to work a Keeping in Touch days she is entitled to turn the opportunity down without suffering any consequences as a result. It is unlawful for an employee to suffer detriment for not agreeing to work Keeping in Touch days, or for working or considering such work.
It is also unlawful to dismiss an employee for not agreeing to work a Keeping in Touch Day, or for working or considering such work.
Up to ten days’ work under the employee’s contract of employment may be undertaken at any stage during the maternity leave period, by agreement with the employer, with the following exception:
Because Keeping in Touch days allow work to be done under the employee’s contract of employment, the employee is entitled to be paid for that work. The rate of pay is a matter for agreement with the employer, and may be as set out in the employment contract or as agreed on a case-by-case basis. However, the employer will need to bear in mind their statutory obligations about paying staff, such as ensuring they pay at least the National Minimum Wage and their responsibilities to ensure women and men receive equal pay for work of equal value.
National Minimum Wage
Compliance with the National Minimum Wage (NMW) is calculated by reference to a pay period that may be the week in which the work is done, or may be up to a month (the pay reference period will normally be the period at which employees are paid). By dividing the payments made in that pay reference period by the number of hours worked, employers and employees may calculate whether or not pay has been at or above the NMW rate. It should be noted that the pay reference period may not always be the same as the week in which Keeping in Touch work was done.
Statutory Maternity Pay (SMP) and Keeping in Touch days
If the employee is receiving statutory maternity pay, the employer should continue to pay her SMP for the week in which any Keeping in Touch work is done by the employee. The employer will be able to reclaim reimbursement for some or all of this money in the normal way from HMRC as before.
If the employee is receiving SMP the employer may count the amount of SMP for the week in which the work is done towards the contractual pay agreed by the two parties. However, it will always be possible to agree an amount of contractual remuneration over and above the weekly SMP rate to reflect the work the woman has done. This is something that both parties need to agree between themselves before any work is done. Whatever amount of money is paid by the employer in respect of Keeping in Touch days, the employer will continue to be able to recover funding from HMRC, for the SMP paid, as normal.
Further advice on statutory maternity pay during Keeping in Touch days is provided by DWP. Jobcentre Plus provides advice for women who are receiving Maternity Allowance.
Key Facts An employee who returns to work after Additional Maternity Leave is also normally entitled to return to the same job on the same terms and conditions as if she had not been absent, unless a redundancy situation has arisen (see Maternity Leave). However, if there is a reason other than redundancy which means that it is not reasonably practicable for her employer to take her back to the same job, she is entitled to be offered suitable alternative work. Employees who have children aged under six (or disabled children under 18) have the right to request flexible working and their employers have a duty to seriously consider that request. An employee who is dismissed during or at the end of maternity leave, or after she resumes work, on the grounds that she took maternity leave may make a claim for unfair dismissal through an employment tribunal. |
When a woman returns to work from maternity leave she has the right to return to the same job, on the same terms and conditions, as though she had not been absent. However, there can be exceptions to this, depending on whether she returns after a period of Ordinary Maternity Leave (the first 26 weeks) or Additional Maternity Leave (the second 26 weeks). See Maternity Leave for further information on the details of maternity leave.
An employee who returns to work after Ordinary Maternity Leave – in other words a woman who has taken no more that 26 weeks’ maternity leave – is entitled to return to the same job on the same terms and conditions of employment as if she had not been absent, unless a redundancy situation has arisen, in which case she is entitled to be offered a suitable alternative vacancy.
An employee who is not allowed to return to her job at the end of Ordinary Maternity Leave is entitled to make a complaint of unfair dismissal to an employment tribunal. If she is not given the same job back, she may bring a claim for sex discrimination or a detriment claim in a tribunal, or might be able to claim constructive dismissal.
An employee who returns to work after Additional Maternity Leave – in other words a woman who has taken more than 26 weeks’ maternity leave – is entitled to return to the same job on the same terms and conditions of employment as if she had not been absent, unless there is a reason why it is not reasonably practicable for her to return to her old job, in which case she should be offered a similar job on terms and conditions which are not less favourable than her original job.
It is good practice for employers to consult with mothers about any proposed changes to their job at the end of their maternity leave if it is possible to do so.
A period of Parental Leave of four weeks or less has no impact on the right of return of the employee. An employee who takes a period of parental leave of more than four weeks straight after the end of either ordinary or additional maternity leave is treated as though they were returning to work after additional maternity leave (see section above).
Parental Leave is a separate entitlement for employees who have completed one year’s service with their employer. It is a right to unpaid time off. Further guidance and advice on Parental Leave is available from DTI.
If there is a reason which makes it impracticable for the employee to return to her original job, a similar job must be found for her. The new job must be such that:
If the new job that is offered to the employee fulfils the criteria above and the employee refuses it, she will have effectively resigned.
If the new job that is offered to the employee is not suitable or appropriate or if the terms and conditions are less favourable than they would have been if she had returned to her old job, the employee may bring a claim for sex discrimination or a detriment claim in a tribunal, or might be able to claim constructive dismissal.
Employees who are the parents of young children (under the age of 6) or of disabled children (under the age of 18) have the right to request flexible working patterns. Employers are required to give such requests serious consideration, and may only turn such requests down if they follow a set procedure and are able to justify the decision. Full advice and guidance on the right to request flexible working.
There may be circumstances where a refusal to permit a woman to work part-time or to change her working pattern in some way amounts to unlawful indirect sex discrimination. For example, it may be more difficult for female employees to fulfil the requirement to work full time, given their child-care commitments, than it would be for male equivalents to do so. In circumstances such as this the employer would need to show that there were objective reasons for asking her to work full-time that had nothing to do with her sex.
It is unlawful to dismiss an employee during or after a maternity leave period, or select her for redundancy in preference to other comparable employees, solely or mainly because she has taken maternity leave or benefited from the terms and conditions of employment to which she was entitled during that leave. An employee who has been dismissed on these grounds should appeal against the dismissal as part of the requirement under the Statutory Dispute Resolution Procedures. Failure by employers or employees to use the statutory procedures could result in an increase or reduction of any compensation awarded. The Acas Code of Practice on disciplinary and grievance procedures sets out the statutory dispute resolution procedures that should be followed before an employee may, if the dispute is not resolved, complain to an Employment Tribunal.Employers and employees may find the general Acas advice on dispute resolution helpful. It is unlawful to dismiss in certain circumstances where an employee fails to return from her maternity leave on time because her employer has given inadequate or no notification of the end date of her leave (see Maternity). Dismissal, selection for redundancy or other detrimental treatment in these circumstances may also amount to unlawful discrimination on grounds of sex or marriage.
An employee who is not given her job back, or who is not offered a suitable alternative job, at the end of additional maternity leave will not be regarded as
unfairly dismissed if the employer can show an employment tribunal that:
An employer may dismiss an employee on grounds largely or wholly unrelated to the fact that she has taken or availed herself of the benefits of maternity leave, unless the dismissal is unfair for some other reason or amounts to discrimination on grounds of sex or marriage (see Protection Against Detriment or Dismissal and Sex Discrimination).
Employers must normally ensure they comply with the Statutory Dispute Resolution Procedures to avoid such a dismissal being found to be automatically unfair. Failure to follow the statutory procedures where they apply may lead to an uplift to any award of compensation made. Further guidance on statutory dispute resolution procedures, unfair dismissal and redundancy is available from DTI.
Key Facts Employers are required to protect the health and safety at work of all employees, including new and expectant mothers and mothers who are breastfeeding. The Management of Health and Safety at Work Regulations 1999 require employers to assess risks to their employees, including new and expectant mothers, and to do what is reasonably practicable to control those risks. To meet their legal obligations employers are required to carry out a specific risk assessment paying particular attention to risks that could affect the health and safety of the new or expectant mother or her child. Once the employer has been informed by the employee that she is pregnant, recently given birth or is breastfeeding, the risk assessment should be carried out. Some examples of the hazards to consider include working long hours, stress, and violence, exposure to toxic chemicals or pesticides and manual handling. If the risk assessment identifies any specific risks that cannot be avoided the employer is required to follow a series of steps to ensure that she is not exposed to that risk, such as making changes to the working conditions; hours of work or offer alternative suitable work. If none of these steps are possible this may ultimately result in suspending her from work on full pay to protect her and her un-born child. There is no statutory right to time off work for breastfeeding. However, employers must provide pregnant and breastfeeding employees with a place to rest and with suitable rest periods. |
Workplace Health Connect provides free practical advice on health and safety matters, including new and expectant workers, for managers and their staff from small and medium enterprises at their advice line on 0845 6096006 or at www.workplacehealthconnect.co.uk
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