In our latest Q&A Amy Lishman, Head of Member Engagement and Deputy CEO of Brighton Chamber, talks to Martin Williams and Samantha Dickson from Mayo Wynne Baxter about how to get maternity and paternity leave right as an employer. They cover employee rights, return-to-work processes, best practice and more.
What are the employee rights on maternity leave?
Maternity rights start even before an employee actually goes on leave. Once they have informed you that they’re pregnant, there are some health and safety protections that you have to carry out. First is a risk assessment, to look at how you can avoid or minimise risks to the pregnancy. Secondly, pregnant employees and agency workers have the right to paid time off for all antenatal appointments – this includes medical appointments as well as things like parenting classes. Employees may also have the right to take time off to accompany someone else to these appointments.
Pregnant employees are entitled to 52 weeks of maternity leave – split into 26 weeks of ‘ordinary’ leave and 26 weeks of ‘additional’ leave. However, the amount of leave actually taken is left to the employee to decide – as long as they take the compulsory minimum of two weeks (or four if they work in a factory). It’s up to them to let you know when their leave will start and how long they will be off for, with a notice period of 28 days for starting leave and 8 weeks’ notice for return.
If the baby is born early, this automatically triggers maternity leave regardless of the notice period.
Employees have the right to return to the same role – or sometimes a suitable alternative if they took the additional leave. If there is a redundancy situation, then they claim priority.
They have the right to flexible working where possible, and are protected from dismissal or any other discrimination as a result of their maternity. This begins as soon as the pregnancy is announced. They can also use ‘shared parental leave’ if they wish to swap some of their maternity leave with their partner in order to return to work.
Finally, holidays continue to accrue throughout maternity leave. Annual leave can’t be taken during this time, and the employee must cease working entirely. Special accommodations can be made to allow them to carry over any untaken annual leave that would otherwise expire.
How is maternity pay calculated?
The minimum pay that an employee is entitled to is the statutory maternity pay – but employers can pay more that this if they want. To be eligible for statutory pay, they must have been continuously working for the same employer for at least 26 weeks before the ‘qualifying’ week (which is 15 weeks before the expected birth). This should be recorded in a MATB1 form.
An important consideration here is what counts as earnings. Earnings are calculated in gross form, and include everything within the contract of employment with a few exceptions such as:
- Payments in kind
- Childcare vouchers
- Employer pension contributions
- Some types of non-cash vouchers
Statutory pay is calculated as an employee’s normal weekly pay. If paid monthly, this is taken from the last two payslips before the qualifying week. If paid weekly, it is determined from the last eight payslips. Either way, it must not be less than £123 per week. If an employee is dismissed after qualifying for maternity leave, they are still owed the money. It's also important to take into account any pay increases!
What are keeping-in-touch days?
These are an optional ten days where an employee can come to work without triggering the end of their maternity leave. They can be taken at any point after the compulsory two weeks, but must be agreed in advance. These days are paid, but only according to the hours they work.
How can we make sure the return-to-work goes smoothly?
It’s important to have clear communication as early as possible, to make sure that everyone is prepared for every step of the process. It can be a good idea to plan a meeting before their return-to-work to discuss any changes and expectations – but only if the employee is willing to be contacted during their leave.
Start alleviating worries early on, by preparing any necessary accommodations such as places to breastfeed. The return process shouldn’t be overwhelming for any party, so you should be conscious of the workload when they return.
What is flexible working?
Flexible working can include working from home, working altered hours, and working part time – and it should be decided on before the leave starts. The employee should outline in writing what their current work is like, what they would like to change, and how this change would impact the business. As an employer you have the right to reject these requests if they will impact the business negatively. You can also question how these changes might impact the employee’s responsibilities, and how they plan to fulfil them despite the change. All requests should have fair consideration, and any rejections must have objective reasons.
If there are changes in working hours and locations, there are some extra things to consider –including childcare, security, and confidentiality. It’s important to clarify that the arrangements are in place to enable them to work.
Who is entitled to paternity leave, and how does it work?
In terms of eligibility, paternity leave is similar to maternity – they must have been employed continuously for at least 26 weeks prior to the qualifying week. You also have to take into account the relationship – to be eligible you have to be ‘partners’, and this is usually accepted as being a domestic parent, or someone with a sufficient degree of responsibility in taking care of the child.
Paternity leave can be for one or two full weeks. Typically, it is taken immediately after the birth, but it can be taken within the first three months.
Despite it being called paternity leave, same sex partners are usually equally entitled, as are surrogates.
What impact does having children have on the gender pay gap disparity?
The impact can be huge, as women are often expected to be taking this leave at some point in their careers – especially as they are required to take a minimum amount if they get pregnant. As long as the societal pressure is there for women to take care of children, the gender pay gap will continue.
Of course, men are affected too – this is seen in the imbalance between paternity and maternity leave.
Are there any changes on the horizon?
New legislation is already lined up for leave related to neo-natal care and surrogacy. The government has also responded to a long-standing consultation by announcing an intention to introduce employed fathers and partners more choice and flexibility around how and when they take their Paternity Leave. Paternity Leave currently has to be taken in the first 56 days after birth. The proposal is to extend this period to one year. Exactly when this will happen is not yet known but it is on the cards.
Should you want to know more about what is in the pipeline, or the finer details of the current legislation, do feel free to contact both Sam and Martin.
Thanks to Martin Williams and Samantha Dickson. Mayo Wynne Baxter is an award-winning specialist solicitor with offices across the South East. Find out more on their website.
You can find more expert Q&As on topics from HR to finance, sustainability and marketing on the Chamber’s Youtube channel. And, to see what learning events are coming up at the Chamber, head over to our events calendar.
If you want to contribute to the Chamber blog, contact us on hannah@brightonchamber.co.uk