Key requirements in relation to maternity leave and rightsPosted in : Seamus Says - Employment Law Discussion on 2 February 2018
Q: Please set out key requirements and things that might catch an employer out in relation to maternity leave and maternity rights before and after leave has been taken. For example, are there protections which if breached inadvertently can be construed as automatic discrimination on the grounds of sex? Are women who have given birth automatically entitled to return to the same work?
Scott: Okay. I see a question coming in there on the chat box. It’s on your right-hand side of your screen. So, if you want to send in any questions, you can. We’re going to move on to maternity and equality issues, Seamus. The first one here is, ‘Please set out key requirements and things that might catch an employer out in relation to maternity leave and maternity rights before and after leave has been taken. For example, are there protections which if breached inadvertently can be construed as automatic discrimination on the grounds of sex? Are women who have given birth automatically entitled to return to the same work?’ So, quite a broad question here.
Seamus: Broad question here. It may be on a theme of thorny issues here this morning, then, in relation to this. Obviously, maternity is a confusing time for both the employee and the employer. It might not be the employee’s first pregnancy and they may have been through the position before and may be aware of their rights or they may have already had children and moved to a new employer and are maybe worried the new employer isn’t on top of the legislation and the requirements as they should be. So, it’s an anxious time, I think, for both.
Just in terms of that, then, we’re looking at various different types of scenarios that could arise here in terms of pitfalls. So, the first one I think, we’re going to look at pitfalls that can happen before the person goes off of maternity leave and then after maternity leave. The first important one is the announcement by the employee. Certainly, that can be an anxious time for the employee. It surprises me that even these days, I still have female clients that are very worried they have to tell the boss they’re pregnant and the fallout that might happen as a result of that.
It’s important that employers, when there is an announcement of pregnancy, treat the employee no differently and are not taking a stance where there’s any detriment to the employee and the employee feels uncomfortable about it. If it’s their first experience with the employer, that will be their lasting experience whenever they come to announce their pregnancy. It’s just important in terms of a fresh start whenever they announce it, that they’re congratulated and that’s a welcome thing for the employee and for the company.
The next thing I think is probably right to move into—this was giving the employee some comfort in terms of what their rights are and it can be helpful maybe to sit down with the employee and have a discussion and remind that there’s lots of stuff on the internet that will be available for both the employer and employee and it will be very confusing for them. So, it’s a good idea to try and get to a position where you’re getting in line dates on your maternity leave and when that might happen.
That’s a bit of a fluid situation for the circumstances and you don’t really know what’s going to happen. There’s a bit of discretion for the employee in relation to that. So, the employer shouldn’t be putting any pressure on the employee to hammer down those dates too early or anything like that. Obviously, during the pregnancy, you’re permitted time off for your medical appointments or acceptance that if the employee is unwell and there’s a lot of absence that you’re not taking any unfair detrimental discriminatory steps in terms of that.
Scott: It’s discrimination because only women can get pregnant.
Scott: There’s no need for a comparator when you’ve got pregnant women. There’s no pregnant men.
Seamus: Exactly. Often, there can be scenarios where there is periods of illness or people are feeling unwell. The next one I highlighted was, dependent on the work the employee is doing, there might be a risk assessment that’s required. Either the person could be doing a very physical job and at three stages of the pregnancy might not be able to do that.
I dealt with a case recently where I was acting for a cleaning company and there was one of the cleaners that worked at a certain premise where there was a lot of physical activity happening in terms of it and the employee had actually come and said, ‘I don’t feel I can continue doing that part of the job because I feel it puts me at risk and I’m not capable of doing it.’ So, it’s important to keep the eye in terms of risk assessments, but don’t overdo it either. Don’t make the employee feel that they are in any way treated differently or anything like that.
Scott: It’s not a static responsibility when it comes to pregnant women because as their pregnancy develops, what they can do might change and it makes it more difficult than at the start. But they are protected throughout that period completely. If the employer can’t provide alternative work, then they have to suspend them on full pay. Similarly with the time off for medical appointments, that’s with pay.
Seamus: That’s it. And just before the person goes off, it can be a good idea, obviously, to get an indication of how long the person intends to take, but they don’t necessarily have to tell you that information. They might know how long they’re going to take. If they don’t mention anything, I think there’s an acceptance they’re taking the full capacity in terms of it. Really, then, you’re into the aspect of post-pregnancy and what happens.
I think it’s a good idea that in advance of the employee going off, there’s a discussion of how much contact they want from their place of work during their maternity leave. Some employees could be very keen to be kept in the loop. They want to know what’s happening. They want updates. They don’t want to feel that they’re left out of anything. Other employees will simply say, ‘I’m on maternity leave. You give me the information I need to know and that’s it.’
Circumstances can change during pregnancy - a person’s viewpoint can very much change when the baby arrives as well. So, you need to be careful about that. Obviously, there’s no badgering of the employee whenever they’re off on maternity leave. You’re not phoning up after a few days or keeping in contact every couple of days to ask them questions, things like that. You have to be respectful of the time they have.
I have to mention redundancies during the period of maternity leave. The worst thing you can do is forget about the employee that is out of the office and “out of sight, out of mind” comes the phrase. Remember that women on maternity leave have the right to be offered suitable alternative employment ahead of others.
It’s an example of positive discrimination that we hear about and where the employees are on maternity leave, they are essentially prioritised. So, think about things if you’re doing collective consultation and respective redundancies or if there are collective consultations going on about any matter you’re involved in your place around maternity leave. Obviously, we’re into our ordinary maternity leave and our additional maternity leave and the rights that impact upon that.
But just to set that out, an employee who returns on ordinary maternity leave has the right to return to their original job, as does an employee that returns from additional maternity leave and sometimes I think there can be with an employer that there’s an automatic right to change the poster, to make adjustments to it just because the person has gone over the period of ordinary maternity leave. But you need to be careful that the changes that you are making, they are justifiable changes and that’s just not a situation where you are making those changes willy-nilly or you’re seizing the opportunity to do it.
I just want to mention briefly there about contractual benefits for the employee as well. Often, issues can arise when a person is on maternity leave whenever they’re getting maybe just statutory maternity pay, there may be those other aspects of their contract that they’re entitled to as well.
The basic position is that in general, other than the terms of the remuneration, the contract itself continues in existence, whereas on maternity leave, there can be those that are non-cash benefits that are in the contract that should continue on, gym memberships and things like that as well. We can go into a lot more detail on bonuses and commissions and all of that. But maybe that’s a whole half-hour itself.
Scott: That’s for another day, but basically everything but pay pretty much is protected during that period and holiday pay carries over, including all the bank holidays, everything just passes on to the period when they come back.
Seamus: Then holidays are an important one as well and usually a point of anxiety for anybody that’s on maternity leave. I want to mention quickly just as well that there is the option for the employee to give notice in terms of returning back early from the date they’ve already provided. They give eight weeks’ notice in relation to that. Just a quick mention in terms of if you have an employee covering maternity leave and that happens, if it’s somebody in for a contract for nine months and the employee on maternity leave wants to come back early, where does that leave you with the temporary employee?
So, sometimes it can be helpful to build in the six-month period with reviews or put in a six-month period with the right to terminate on a month’s notice thereafter, something along those lines. Finally, just in relation to the aspect of shared paternity leave and pay and the impact that all of that has as well on the maternity period. Those are some of the pitfalls, but you can see we spent quite a bit of time there going through those.
Q: Does the worker accrue holiday pay during maternity leave?
Scott: The quick answer is yes.
Seamus: Yes, 100%.
More on Discrimination & Equality
- Cresco Investigation v Markus Achatzi 
- Horgan & Keegan v Minister for Education & Skills 
- Public Holidays and Religious Holidays - What constitutes equal treatment?
- What impact can there be on age discrimination when using salary scales?
- Mrs F Nissa v Waverly Education Foundation Ltd 
The information in this article is provided as part of Legal-Island's Employment Law Hub. We regret we are not able to respond to requests for specific legal or HR queries and recommend that professional advice is obtained before relying on information supplied anywhere within this article.