GUIDANCE FOR EMPLOYERS
Pregnancy
and maternity
Pregnancy
Equality and Human Rights Commission
www.equalityhumanrights.com
Pregnancy and Maternity Guidance for Employers: Pregnancy
Introduction
This guidance covers your legal obligations to new parents and parents-to-be. We
have also highlighted good practice recommendations that go beyond the minimum
that the law requires. Following good practice can help you recruit and retain good
people but each business must decide its own approach.
Paid time off for antenatal care
Pregnant employees are legally entitled to reasonable paid time off for antenatal
care where they have been advised to attend by a registered doctor, midwife or
health visitor. Fathers and partners are legally entitled to unpaid time off to attend up
to two ante natal appointments. Agency workers have similar legal rights to time off
for antenatal care after 12 weeks in the same job.
Antenatal care can include:
•
medical examinations
•
scans
•
appointments with a GP or midwife
•
antenatal classes
•
relaxation
•
parent-craft classes
You are legally entitled to request evidence of the appointments (apart from the first
appointment). You can also request evidence of pregnancy from the employee in the
form of a certificate from a registered doctor, midwife or health visitor. You are legally
entitled to refuse time off for appointments (apart from the first appointment) if this
information is not provided.
There are no specific rules about how much time an employee can take off. The
amount of time taken must be reasonable. Time off must include travelling and
waiting time as well as the appointment or class.
Employees may have to wait some time during busy antenatal clinics and must not
be penalised for this. They will also have little flexibility over the timing of the
appointment.
Equality and Human Rights Commission · www.equalityhumanrights.com
Published July 2015
2
Pregnancy and Maternity Guidance for Employers: Pregnancy
If the employee works part-time she is still legally entitled to paid time off for her
antenatal care and will not necessarily be able to arrange appointments outside her
working hours.
You are legally entitled to ask an employee to go into work before and/or after the
appointment if it’s reasonable and within her normal working hours but employees
must not be asked to make up any time missed or be asked to use their annual
leave.
An employee must not be dismissed or treated unfavourably for asking for or taking
time off for antenatal care that she is entitled to. For example, any time off for
antenatal care to which she was entitled should not be taken into account when
taking disciplinary action or selecting for redundancy.
Rate of pay for antenatal care
You must pay an employee her normal hourly rate of pay during time off for
antenatal care.
Calculate the normal hourly rate by dividing a week’s pay by the employee’s normal
working hours. Overtime is included in weekly earnings if it is compulsory under the
terms of the employment contract.
If the employee’s hours vary from week to week, you should average out her hours
over the previous 12 working weeks.
Health and Safety
You have a legal duty to protect the health and safety of all workers and employees,
particularly during pregnancy, breastfeeding and for six months after childbirth. In
practice this means:
•
Carrying out a general risk assessment on all your employee’s workplaces.
•
Taking action to deal with health and safety issues that may arise from the
assessment relating to pregnancy or breast feeding, or specific issues identified
by the pregnant or breastfeeding woman
An employee should confirm in writing that she is pregnant, breastfeeding or has
given birth in the last six months. You can request written confirmation of pregnancy
(apart from a MATB1) from a registered doctor or midwife but you must not delay
taking action while waiting for it. If the employee does not provide proof within a
Equality and Human Rights Commission · www.equalityhumanrights.com
Published July 2015
3
Pregnancy and Maternity Guidance for Employers: Pregnancy
reasonable time, you do not have to continue any changes to her working conditions
or suspension on full pay.
Risk assessments for pregnant employees
Once you’ve been notified in writing that an employee is pregnant, it is advisable to
revisit your general workplace risk assessment.
If the work could involve risks during pregnancy, the workplace risk assessment
must identify risks to new or expectant mothers arising from processes, working
conditions, (and if appropriate) physical, biological or chemical agents. You must
then take all workable measures to remove, reduce or control any risks you identify.
The law does not require you to conduct an individual risk assessment for each
new or expectant mother, once notified that she is pregnant or breastfeeding,
however, the Health and Safety Executive advises that you may choose to do an
individual risk assessment to help decide if there is any action to be taken and to
identify what practical support the employee needs to do her job as effectively as
possible.
You should review the risks regularly and take action where there is a significant
change in the work or as the employee’s pregnancy progresses.
Action to deal with health and safety risks
Once you have been notified that an employee is pregnant, you must revisit your
general workplace assessment, consider the risks and take action as follows:
Step 1: If you identify a risk you must reasonable changes to her working conditions
to avoid those risks. There are a range of reasonable changes you can make, for
example:
•
alter (temporarily) the employee’s hours of work
•
allow extra breaks
•
ensure the employee can sit down
•
reallocate heavy lifting duties
Step 2: If there are no reasonable changes you can make to avoid the risk, you must
offer the employee suitable alternative work on terms and conditions that are not
substantially less favourable to those of her original job.
Equality and Human Rights Commission · www.equalityhumanrights.com
Published July 2015
4
Pregnancy and Maternity Guidance for Employers: Pregnancy
Step 3: If there is no suitable alternative work, you must suspend the employee on
full pay for as long as is needed to avoid the risk. HSE states, “If no immediate risk
has been identified you MUST monitor and review the assessment regularly as
circumstances can change.”
If the employee does not provide written confirmation of her pregnancy within a
reasonable time, you do not have to continue any changes to her working conditions
or suspension on full pay.
You must make sure that any alternative work is suitable and appropriate for the
employee taking into account her current role, responsibilities and skills. Alternative
work must also be on terms and conditions that are not less favourable than her
existing terms and conditions. For example, if you have made changes for health
and safety reasons, then an employee must receive the same level of pay while she
is working different hours or doing different tasks.
An employee has a legal entitlement to return to her normal work on the same terms
and conditions once there is no longer a health and safety risk.
You must take into account any advice provided by the employee’s doctor and/or
midwife.
Example — Susan works in a department store. The work involves standing up
for most of the day. She provides written notification of her pregnancy. The
employer's workplace risk assessment has identified that standing for long
periods can pose a risk to the health and safety of a pregnant employee.
Her employer should make reasonable adjustments to her working conditions to
avoid that risk by providing a chair so that she is not standing for long periods.
Susan should be allowed to sit down to do her work whenever possible during
her pregnancy - even if colleagues are not provided with chairs. Her employer
can offer other duties that do not involve standing all day.
What could happen if you do not take health and safety action?
If you fail to take action to deal with health and safety risks the results can be
damaging to your employee and your business. Failing to carry out a risk
assessment and take any required action can have serious consequences for the
mother and/or baby.
Equality and Human Rights Commission · www.equalityhumanrights.com
Published July 2015
5
Pregnancy and Maternity Guidance for Employers: Pregnancy
It can result in unnecessary sickness absence, poor performance, loss of earnings
(which can affect entitlement to Statutory Maternity Pay), and in some cases
personal injury for which you could be liable.
It would be discrimination to fail to remove or avoid the risks identified to new and
expectant mothers.
Handling performance issues and dismissal
You must not dismiss an employee or treat her unfavourably for health and safety
reasons relating to her pregnancy or maternity leave.
For example, an employee should not be asked to take sick leave or be paid less if
there are health and safety reasons why she cannot do all or part of her job. Instead
you should take action to deal with the health and safety risks. (See the steps set out
in section 2.2)
If there are performance issues with a pregnant employee, you should consider
whether there are any health and safety issues that are putting her at a
disadvantage.
If an employee is off sick with a pregnancy-related illness in the four weeks before
the week her baby is due, her maternity leave will start automatically unless you
chose to let her carrying on working. However, you should continue to review any
health and safety risks for as long as the employee is at work so that she’s not
forced to take unnecessary sick leave.
Example — Pamela gave notice to start her maternity leave two weeks before
her due date. She is now in the late stages of her pregnancy and has asked her
employer if she can reduce the amount of driving she does in her job visiting
clients.
Her employer has had written notification of Pamela’s pregnancy so must keep
any risks under review and consider making reasonable adjustments to her
working conditions and hours of work in order to avoid the risks.
Her employer cannot ask Pamela to start her maternity leave early but should
consider other ways that Pamela can keep in touch with clients now that she is in
the late stages of her pregnancy and is finding a lot of driving difficult.
Equality and Human Rights Commission · www.equalityhumanrights.com
Published July 2015
6
Pregnancy and Maternity Guidance for Employers: Pregnancy
Health and safety of night workers
If an employee provides a medical certificate from her midwife or GP stating that
night work could affect her health and safety, you must offer her suitable alternative
daytime work or (if there is no suitable alternative work) suspend her on full pay for
as long as is needed to protect her health and safety.
Any offer of alternative work that you make must be suitable and appropriate for the
employee. For example, if she can’t work in the day because of her childcare
responsibilities then she should be suspended on full pay.
It must also be on similar terms and conditions to her old job so that she is not
substantially worse off. This means that if she normally earns a higher rate of pay for
working at nights, she should continue to be paid that higher rate while she is
working different hours for health and safety reasons.
Other health and safety obligations
The Manual Handling Regulations 1992 say you must take reasonable steps to
ensure that employees do not undertake heavy lifting that could cause injury, and
take action to reduce the risk of injury.
The Workplace (Health, Safety and Welfare) Regulations 1992 require employers to
provide suitable facilities for workers who are pregnant or breastfeeding to rest,
including the facility to lie down.
Common health and safety risks during pregnancy
The Health and Safety Executive lists the following risks you should look out for
during pregnancy:
•
•
Physical
·
Movements and postures (standing or sitting for long periods)
·
Manual handling (lifting or carrying heavy loads)
·
Shocks and vibrations
·
Noise
·
Radiation (ionising and non-ionising)
·
Compressed air and diving
·
Underground mining work
Biological
·
Infectious diseases
Equality and Human Rights Commission · www.equalityhumanrights.com
Published July 2015
7
Pregnancy and Maternity Guidance for Employers: Pregnancy
•
•
Chemical
· Toxic chemicals
·
Mercury
·
Antimitotic (cytotoxic) drugs
·
Pesticides
·
Carbon monoxide
·
Lead
Working conditions
·
Mental and physical fatigue, long working hours
·
Stress (including post-natal depression)
·
Passive smoking
·
Very hot or cold temperatures
·
Working with visual display units (VDUs)
·
Working alone
·
Working at height
·
Travelling
·
Risk of violence
·
Personal protective equipment
·
Nutrition
If there is a risk of infection in the workplace that is greater than the employee might
be exposed to normally, you must take action. More information on health and safety
risks during pregnancy is available from the Health and Safety Executive, see
www.hse.gov.uk/mothers.
Illness during pregnancy
Pregnancy–related illness must be recorded separately from other kinds of sickness.
It must not count towards an employee’s total sickness absence record or be used
as a reason for disciplinary action or redundancy selection even where that action is
being taken after the woman has returned to work.
Regardless of whether the sick leave is pregnancy-related or not, an employee who
is off work sick during pregnancy must receive her normal contractual sick pay
(Statutory Sick Pay) in the same way as any other employee (and in line with her
contract of employment).
Equality and Human Rights Commission · www.equalityhumanrights.com
Published July 2015
8
Pregnancy and Maternity Guidance for Employers: Pregnancy
A pregnant employee is entitled to receive Statutory Sick Pay provided she is
eligible. You should note that if an employee is in receipt of Statutory Sick Pay during
the calculation period for Statutory Maternity Pay (approximately weeks 18 to 26 of
her pregnancy) she may not qualify for Statutory Maternity Pay.
If a pregnant woman is taking sick leave because her working conditions are
affecting her health and safety, you must consider the risks she is facing and take
action to remove them.
It is likely to be discrimination if you fail to take action to address such risks.
Pregnancy-related sickness absence in the four weeks before expected week
of childbirth
If an employee is off sick with pregnancy-related illness at any time during the four
weeks up to the start of the expected week of childbirth, her maternity leave will start
on the day after the first day of absence unless you decide to let her carry on
working.
As soon as it’s reasonably practicable, the employee must give you notice (in writing,
if you request it) that she is absent from work because of pregnancy and give the
date her absence began.
Example — Find the Sunday at the start of the expected week of childbirth (or
the due date if it is a Sunday) and count back four Sundays. That is the start of
the four weeks before the expected week of childbirth.
If the employee is eligible to receive Statutory Maternity Pay, it will start from the day
following the first day the employee is absent for a pregnancy-related sickness.
Time off work for antenatal care does not count as absence due to pregnancyrelated sickness. If you (or she) are unsure about whether a woman’s sickness
absence is pregnancy-related then she should talk to her GP or midwife.
You do not have to trigger the start of maternity leave if you do not want to - you can
choose to ignore the odd day of pregnancy-related sickness absence. For example,
if cover has been arranged to start from a set date or sickness only lasts for a short
period, there’s no need to start maternity leave.
Equality and Human Rights Commission · www.equalityhumanrights.com
Published July 2015
9
Pregnancy and Maternity Guidance for Employers: Pregnancy
Protection from dismissal and detrimental treatment
during pregnancy
It is discrimination to treat a woman unfavourably because of pregnancy, pregnancyrelated sickness absence or maternity leave.
You must not discriminate against a woman, subject her to a detriment or dismiss
her for a reason relating to her pregnancy, childbirth or maternity leave. This includes
pregnancy-related sickness absence.
You can tackle poor performance of a pregnant employee as long as the issues you
raise are not related to her pregnancy or you are not taking disciplinary action
because of her pregnancy. If a woman is dismissed during pregnancy, she is legally
entitled to written reasons for the dismissal. If the reason for the dismissal is her
pregnancy or taking maternity leave the dismissal is automatically unfair.
Redundancy during pregnancy
An employee who is made redundant during her pregnancy will be legally entitled to
any redundancy and/or notice pay that she qualifies for. If she is made redundant in
or after the 15th week before the expected week of childbirth she will still qualify for
Statutory Maternity Pay (as long as she is already eligible).
It is unlawful to select a woman for redundancy because she is pregnant. Regardless
of how long she has worked for your company, it is likely she will have a claim for
unfair dismissal and discrimination.
Good communication and forward planning
It is good practice to talk to an employee about her rights and entitlements during
pregnancy. This will help avoid confusion and misunderstandings. It’s also advisable
to clarify when she’ll be taking annual leave entitlement.
It is good practice to hold an early discussion with an employee who has recently
announced her pregnancy. An early meeting could cover the following legal rights
during pregnancy:
•
Time off for antenatal care
•
Health and safety
•
Annual leave
Equality and Human Rights Commission · www.equalityhumanrights.com
Published July 2015
10
Pregnancy and Maternity Guidance for Employers: Pregnancy
•
When to give notice for maternity leave and pay and Shared Parental Leave and
pay
•
Pregnancy-related sickness in the four weeks before the Expected week of
childbirth
It is advisable to also discuss options for providing over during her maternity leave
and any periods of Shared Parental Leave.
It is good practice to hold a pre-maternity leave interview to discuss what will happen
during the leave period. A pre-maternity leave interview could cover:
•
Confirmation of payment of Statutory Maternity Pay and/or contractual maternity
pay
•
Contact during maternity leave and Shared Parental Leave
•
Keeping-in-touch days and shared-parental-leave-in-touch days
•
Informal indication of whether the employee will be requesting flexible work on
return to work
•
When to request flexible work e.g. two to three months before return, if possible
•
Notice of early return to work
•
Notice required for Shared Parental Leave and pay
•
Notice required if she decides not to return to work
Notice for maternity leave and pay
Your employees must give notice for maternity leave by the end of the 15th week
before the Expected week of childbirth, or as soon as it is practical to do so. An
employee must notify you (in writing, if requested):
•
that she is pregnant
•
the expected week of childbirth, and
•
the date she would like to start her maternity leave.
In order to claim Statutory Maternity Pay, the employee must give you her MATB1
maternity certificate which is usually provided by a midwife or GP when a woman is
about 20 weeks’ pregnant.
She must give at least 28 days’ notice of the date she wishes Statutory Maternity
Pay to start but it’s common to give notice for pay at the same time as for leave.
You cannot pay Statutory Maternity Pay until the MATB1 maternity certificate has
been received. You must keep a copy of the MATB1.
Equality and Human Rights Commission · www.equalityhumanrights.com
Published July 2015
11
Pregnancy and Maternity Guidance for Employers: Pregnancy
Once notice has been received, you must write to the employee within 28 days
stating the date on which her maternity leave is expected to end. You should assume
that the employee will take the full 52 weeks’ leave.
If an employee wishes to change the start of her maternity leave, she must give you
at least 28 days’ notice before the new date or the old date, whichever is earliest.
If there is good reason why it’s not possible to give 28 days’ notice she must give
notice as soon as possible. You must notify her of the change to the date on which
her maternity leave will end.
Managing absence during maternity leave
There are a number of options you can consider for covering an employee’s absence
on maternity leave, such as:
•
hiring a temporary agency worker
•
hiring an employee on a fixed term contract
•
internal recruitment
•
a secondment
•
temporary changes to roles such as promotion
•
redistributing work amongst other staff
It’s good practice to talk to your pregnant employee and her colleagues to discuss
the best arrangements.
You should take care that cover arrangements do not create resentment if
colleagues end up with an increased workload. This can affect working relationships
and impact on work and morale.
It is advisable to try to cover absence on maternity leave, as failing to handle it
properly could lead to claims of discrimination for which you could be liable.
Miscarriage, stillbirth and the death of a baby
Miscarriage
A miscarriage is where a baby is not born alive before the end of the 24th week of
pregnancy. An employee who has a miscarriage does not have the right to maternity
Equality and Human Rights Commission · www.equalityhumanrights.com
Published July 2015
12
Pregnancy and Maternity Guidance for Employers: Pregnancy
leave or pay but she is legally entitled to take sick leave and annual leave in the
normal way.
Any sick leave taken by an employee that is related to the pregnancy or miscarriage
must be recorded by an employer separately from any other type of sick leave so
that it is not used to the detriment of the employee for example, in any redundancy or
disciplinary situations.
Stillbirth
A baby is stillborn if it is not born alive after the end of the 24th week of pregnancy.
An employee whose baby is stillborn is legally entitled to take up to 52 weeks’
maternity leave.
An employee whose baby is stillborn will also be legally entitled to Statutory
Maternity Pay if she meets the normal qualifying conditions. If the baby is stillborn
before the end of the qualifying week, the period over which the employee’s earnings
are averaged for Statutory Maternity Pay calculation purposes will be the eight
weeks up to the last payday before the week in which the baby was stillborn.
If the baby is stillborn before the employee has started her maternity leave, the
employee must notify her employer (as soon as it is practical to do so) that she has
had a stillbirth and the date it happened. If you request it, she must write to you to
confirm this.
To claim Statutory Maternity Pay, the employee must also provide her employer with
medical evidence of the Expected week of childbirth (usually in the form of the MAT
B1 maternity certificate) and evidence of the date the baby was stillborn.
If the employee has already given notice for her Statutory Maternity Pay to start but it
is to start early because of the stillbirth, she must also let you know (in writing, if
requested) the date her absence began.
Notice for Statutory Maternity Pay must be given within 21 days of the stillbirth (or as
soon it’s practical to do so). Statutory Maternity Pay will start on the day following the
date of the stillbirth. Maternity leave will start on the day after the date of stillbirth.
If an employee’s baby is stillborn while she is on maternity leave and receiving
Statutory Maternity Pay, the employee's entitlements continue as before the stillbirth.
She does not need to take any action.
On returning to work after maternity leave following a stillbirth, the employee is
legally entitled to the health and safety protection which applies to all women who
have just given birth.
Equality and Human Rights Commission · www.equalityhumanrights.com
Published July 2015
13
Pregnancy and Maternity Guidance for Employers: Pregnancy
Paternity leave and pay is also available to the husband or partner where a baby is
stillborn.
The death of a baby
If an employee’s baby is born alive (at any stage of the pregnancy) but dies
afterwards, the employee is legally entitled to take up to a year’s maternity leave as
normal and she will qualify for Statutory Maternity Pay if she meets the normal
qualifying conditions.
Premature birth
An employee whose baby is born prematurely is legally entitled to maternity leave
and any Statutory Maternity Pay she qualifies for in the same way as any other
employee.
Maternity leave will start on the day after the birth, even if this is before the 11th
week before the expected week of childbirth.
If an employee’s baby is born while she is on maternity leave and receiving Statutory
Maternity Pay, the employee's entitlements continue as before the birth. She does
not need to take any action.
If the baby is born before the employee has started her maternity leave or Statutory
Maternity Pay, the employee must notify you (as soon as it’s practical to do so) that
she has given birth and the date of the birth. If you request it, she must write to you
to confirm this.
To claim Statutory Maternity Pay, the employee must also provide you with medical
evidence of the expected week of childbirth (usually the MAT B1 maternity
certificate) and evidence of the date the baby was actually born.
If the employee has already given notice for her Statutory Maternity Pay to start but
she gives birth early, she must also let you know (in writing, if requested) the date
her absence began.
Notice for Statutory Maternity Pay must be given within 21 days of the birth or as
soon as it’s practical to do so. The Statutory Maternity Pay period will start on the
day after the birth.
Equality and Human Rights Commission · www.equalityhumanrights.com
Published July 2015
14
Pregnancy and Maternity Guidance for Employers: 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)
10:00 to 14:00 (Saturday)
Post
FREEPOST Equality Advisory Support Service FPN4431
Questions and comments regarding this publication may be addressed to:
correspondence@equalityhumanrights.com. The Commission welcomes your
feedback.
Alternative formats
For information on accessing a Commission publication in an alternative format,
please contact: correspondence@equalityhumanrights.com.
ISBN: ?
© 2015 Equality and Human Rights Commission
Published July 2015
Equality and Human Rights Commission · www.equalityhumanrights.com
Published July 2015
15