New Dad alert – childbirth and the law Mar 13 2018 | Jack Boyle, associate solicitor employment, Blackadders

IT was good to see Serena Williams back where she belongs on the tennis court this week, just 6 months after a traumatic childbirth. She dedicated her performance to her daughter.

New Dad

As a new, first time, deer-in-the headlights-dad myself, I’ve recently had cause to study the ins and outs of the various pieces of pregnancy, maternity, paternity and parental leave legislation.  The sum total of my researches - I was entitled to 2 weeks statutory paternity leave (and pay).  There was the added option of utilising shared parental leave, where I could opt to share some of the mum’s maternity leave - however, she’s told me to get on my bike with that idea (phew).

The Basics

The law offers various rights to mothers and fathers in relation to childbirth (and similar rights for partners, civil partners and adoptive parents, let’s not forget).

Here are some of the main rights:-

  • Statutory maternity leave which is a day one right providing for mothers to have up to 12 months’ leave following childbirth.
  • Statutory maternity pay which is subject to a 6 months’ qualifying service requirement (and other minimum earnings requirements) – providing for 39 weeks’ pay for mothers (currently 6 weeks at 90% of full pay, followed by £141 per week).
  • Statutory paternity leave and pay which is again subject to 26 weeks’ qualifying service providing fathers with 1 or 2 weeks off work within 56 days of childbirth at £141 per week.
  • Shared parental leave which is a slightly more complicated regime whereby mothers and fathers can “share” the year of statutory maternity pay, subject to quite technical notice requirements and qualifying conditions.
  • Time off for antenatal appointments – mothers are entitled to a reasonable paid time off for such appointments. Fathers, partners, civil partners are entitled to time off for up to 2 such appointments (unpaid, though employers have the discretion to pay).  The main adopter is entitled to paid time off for up to 5 adoption appointments, whereas the secondary adopter gets time off for 2 appointments, but unpaid.

Right to Return to work
It is assumed that mothers will return to work after their maternity leave (they can return sooner, but not within the first 2 weeks after birth).  It is a criminal offence to allow a mother to work in the 2 weeks post birth.  A mother who wants to vary her return to work date they must give 8 weeks’ notice.

There is, therefore, an automatic right to return to work after maternity leave.  This right means that either:-

  1. if the mother is returning after 26 weeks or less (i.e. during or after “ordinary” leave), she may return to the same job (as she did before the leave) and on no less favourable conditions; or
  2. if the mother is returning after 26 weeks (i.e. after what is known as “additional” leave), where it is not reasonably practicable to return to the exact same job, she must return to something which is suitable and appropriate for her in the circumstances.

Note that neither of the above operates as an absolute barrier to making a mother redundant during or after maternity leave.  However, employers must tread cautiously and take advice.  Where redundancy arises during maternity leave, a mother must be offered first dibs on any suitable alternative vacancies which exist.

Automatically unfair dismissal
The usual 2-year rule for unfair dismissal goes out the window in pregnancy/maternity cases.  A mother who is dismissed for a reason (or if the principal reason is) connected to pregnancy or maternity, is treated as having been automatically unfairly dismissed.  She can pursue such a claim from day one of her employment.

Note that in the recent case of Really Easy Car Credit Limited v Thompson, a pregnant woman was told that she was getting let go during her probation. Subsequently, she disclosed that she was pregnant.  The Employment Appeal Tribunal rejected her argument that the employer knew she was pregnant when the decision was taken, thus her claim failed as the dismissal was not because of pregnancy.

Employees – know your rights.

Employers – know your obligations.

Any dismissals which fall soon after a disclosure of pregnancy will be put under the microscope at a tribunal. Coincidence?

Getting back to Serena, don’t be taken advantage of over matters relating to childbirth and employment. Come to Blackadders LLP for some ACE advice.

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