GUIDANCE FOR EMPLOYERS
Pregnancy
and maternity
Before a Pregnancy
Equality and Human Rights Commission
www.equalityhumanrights.com
Pregnancy and Maternity Guidance for Employers: Before a Pregnancy
Introduction
This guidance covers your legal obligations to new parents and parents-to-be. It
covers birth parents and partners of an employee recognised as a main adopter. It
highlights examples of good practice that go beyond the minimum that the law
requires. Following these steps encourages clear communication between
employers and employees and can help you recruit and retain good people but each
business must decide its own approach.
Maternity and parental policies
It is good practice to have maternity and parental policies in place. Model policies
are provided on the Equality and Human Rights Commission website
(www.equalityhumanrights.com)
Health and safety risk assessment
You have a duty to carry out a workplace health and safety risk assessment for all
your employees and anyone else affected by your business. You must regularly
review the risk assessment and let employees know of any risks and any measures
taken to protect them.
If you employ women of childbearing age and the work could involve risks to the
health and safety of new or expectant mothers (or their baby), the assessment must
also include any risks to them from processes or working conditions and physical,
chemical or biological agents. If the work could involve risks to new or expectant
mothers and you fail to carry out an assessment and take action in respect of any
risks identified, you may face a claim for sex or pregnancy and maternity
discrimination.
It is advisable to do an assessment of risks to new and expectant mothers in order
to ensure that potential risks have been identified and to be in a position to take
sensible and reasonable action to deal with those risks when notified that an
employee is pregnant or has given birth in the last six months or is breastfeeding.
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Pregnancy and Maternity Guidance for Employers: Before a Pregnancy
You have a duty to regularly review the workplace risk assessment and continue to
monitor any risks to new and expectant mothers and their babies, such as taking into
account different stages of the pregnancy and age of the baby.
If there are identifiable risks that were not tackled, an employee can complain to the
Health and Safety Executive or local environmental health officer (depending on the
type of workplace). If an employee or her baby suffers illness or injury as a result of
health and safety risks she may have a claim for personal injury.
The Health and Safety Executive provides a risk assessment template and a number
of examples of risk assessments for different types of small and medium-sized
businesses. Visit www.hse.gov.uk/risk/casestudies/index.htm.
Recruitment
Recruitment of new employees should focus on what the job involves and the
qualifications, experience and skills required to do the job. Wherever possible, you
should offer all jobs on a flexible basis in order to attract the widest possible pool
from which to recruit, see Right to request flexible work.
When recruiting new employees, you must not refuse to employ a woman because
she is pregnant or may be pregnant or has been on maternity leave.
An employee does not have to tell you that she is pregnant during interview or
selection procedures. It is up to the employee to decide when she wishes to tell you
of her pregnancy.
An employee is only legally required to inform you of her pregnancy if she wishes to
take time off for antenatal care or she is notifying you of her pregnancy for health
and safety reasons.
An employee does not have to give notice of her pregnancy until the 15 th week
before her expected week of childbirth, when she must give you notice of her
intention to take maternity leave and pay.
Any questions asked at an interview (or in a pre-employment health questionnaire)
about a woman’s intentions to have a family could be interpreted as an intention to
discriminate against her because she is pregnant or likely to become pregnant. This
could lead to a potential sex discrimination claim if the woman is not offered a job.
Similarly, if a woman is not offered a job, any questions you asked about her health
could lead her to claim that the reason she was not recruited was because you
Equality and Human Rights Commission · www.equalityhumanrights.com
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Pregnancy and Maternity Guidance for Employers: Before a Pregnancy
thought she might have been pregnant or might have had a disability and so be sex
or disability discrimination.
If a new employee notifies you that she is pregnant shortly after starting a new job,
she is entitled to take up to 52 weeks’ maternity leave just as any other employee
would. If she was already pregnant before she started her job she is unlikely to
qualify for Statutory Maternity Pay because she will not meet the continuous service
criteria.
If she does not meet the normal qualifying conditions for Statutory Maternity Pay,
you should give her form SMP1 so that she can claim Maternity Allowance instead.
Protection against unfair dismissal and discrimination
Employees and other workers are protected from discrimination from day one of their
employment.
Job applicants can also make a claim for discrimination. The protected
characteristics for a discrimination claim are:
•
Sex
•
Pregnancy and maternity
•
Race
•
Disability
•
Sexual orientation
•
Gender reassignment
•
Age
•
Marriage and civil partnership
•
Religion or belief
Employees who started their job on or after 6th April 2012 will need to have worked
for you for at least two years in order to be able to make a claim for unfair dismissal.
Employees who started their job before 6th April 2012 need to have worked for you
for at least one year in order to bring a claim for unfair dismissal. However, an
employee can bring a claim for automatically unfair dismissal from day one of their
employment, if the reason for their dismissal was:
•
Pregnancy
•
Maternity or Adoption Leave
(Continued…)
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Pregnancy and Maternity Guidance for Employers: Before a Pregnancy
•
Paternity Leave
•
Shared Parental Leave
•
Parental Leave
•
time off for dependants having made an application for flexible work
Employees who are thinking of making a claim in an employment tribunal must
contact ACAS first to see if the matter can be resolved by Early Conciliation. ACAS
will contact both parties to see if they can help to resolve the matter.
GP In order to try and reduce the number of disputes that end up going to an
employment tribunal, it is a good idea to have disciplinary and grievance procedures
already in place.
Early Conciliation
Employees who are thinking of making a claim in an employment tribunal must
contact ACAS first to see if the matter can be resolved by Early Conciliation. ACAS
will contact both parties to see if they wish to take part in conciliation. Once
contacted by ACAS, if either party does not wish to take part or if conciliation is not
successful, ACAS will issue a certificate allowing the employee to make a tribunal
claim.
ACAS conciliation is a free service that can allow the employer and employee to
clear up misunderstandings and reach an agreement. It is confidential so any
discussions cannot be used in tribunal proceedings. Settling a dispute by conciliation
can help to avoid the time and cost of tribunal proceedings, as well as the potential
for negative publicity.
Disciplinary and grievance procedures
It is good practice to have procedures in place to handle disciplinary issues and
grievances from employees. This can help to solve problems in the workplace and
ensure that complaints from employees are handled in a fair and objective
manner.
It can also ensure that disputes in the workplace are dealt with effectively, saving
time and expense and reducing the number of potential claims brought in an
employment tribunal.
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Pregnancy and Maternity Guidance for Employers: Before a Pregnancy
If you have unreasonably failed to follow ACAS's code on discipline and grievance
an employment tribunal can increase the compensation they give an employee who
brings a successful claim against you, e.g. for unfair dismissal.[link]
Guidance on disciplinary and grievance procedures can be obtained from the ACAS
booklet www.acas.org.uk/media/pdf/l/c/Discipline-and-grievances-Acas-guide.pdf.
Equality and Human Rights Commission · www.equalityhumanrights.com
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Pregnancy and Maternity Guidance for Employers: Before a Pregnancy
Contact us
This publication and related equality and human rights resources are available from
the Commission’s website: www.equalityhumanrights.com.
For advice, information or guidance on equality, discrimination or human rights
issues, please contact the Equality Advisory and Support Service, a free and
independent service.
Website
www.equalityadvisoryservice.com
Telephone
0800 800 0082
Textphone
0808 800 0084
Hours
09:00 to 20:00 (Monday to Friday)
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Post
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© 2015 Equality and Human Rights Commission
Published July 2015
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