MATERNITY RIGHTS

Women who are pregnant are entitled to certain rights that you, as employers, must comply with. If you don't, you may find yourselves facing a tribunal claim. The following is an overview of the main provisions that apply.

Antenatal stage

Employed women are entitled not to be "unreasonably refused" paid time off to attend antenatal appointments during working hours.

It may be reasonable for you to refuse a woman time off if she works part time, and could easily attend the appointment or class on one of her non-working days. If your refusal is unreasonable, then the woman can complain to a tribunal.

Women receiving fertility treatment are not entitled to paid time off for antenatal care because they are not pregnant.

Maternity leave

All pregnant employees are entitled to 52 weeks' maternity leave, irrespective of how long they have worked for you or how many hours they work per week. This is made up of 26 weeks' ordinary maternity leave (OML) and 26 weeks' additional maternity leave (AML).

There is a compulsory two-week period of leave that starts with the date of birth and applies to all employees. It is a criminal offence if you fail to ensure that the woman takes two weeks' leave once the baby is born. Factory workers are prohibited from working for four weeks after the birth.

To apply for maternity leave, a woman must tell you at least 15 weeks before the week in which her baby is due if possible:

• that she is pregnant
• the date when the baby is due (you can ask to see evidence of this such as a medical certificate, MAT B1 form)
• the date when she intends to start her maternity leave.

Once your employee has told you when she intends to start her leave, you must write to her within 28 days telling her when she is expected to return, based on the assumption that she wants to take her full leave entitlement of 52 weeks.

Women have to give eight weeks' notice if they want to change the date on which they want to return from maternity leave. You can also make "reasonable contact" with your employees while they are on leave to help you plan for the woman's return and to ease her return to work.

If a woman has a pregnancy-related illness at any time in the four weeks leading up to the expected week of childbirth, then her maternity leave will be automatically triggered.

Terms and conditions

During maternity leave, a woman is entitled to all the same terms and conditions (apart from the right to be paid), had she not been away from work. Equally, she is bound by any obligations under her contract, unless they conflict with her right to take leave. She is also still entitled to receive all benefits such as pension contributions or the use of a company car.

All service-related benefits accrue during maternity leave. Paid annual leave (both contractual and statutory under the Working Time Regulations 1998) continue to accrue, as do other rights such as seniority and pension rights. The woman can take her leave either before or after maternity leave, as long as she gives you the correct notice.

During maternity leave

You are allowed to make contact with your employee (and vice-versa) during the maternity leave period, as long as the amount and type of contact is not unreasonable. For instance, to discuss her plans for returning to work, or to keep her informed of important developments at the workplace.

The employee can undertake up to 10 days' work under her contract of employment (called "keeping in touch" days), as long as both you and she have agreed to this. You must also agree with her what work she is to do and how much she will be paid for it.

Returning to work

If a woman wants to return before the end of her full leave period, she has to tell you at least eight weeks beforehand of the date on which she intends to come back. Otherwise she does not have to give any notice.

After OML a woman is entitled to return to the same job that she was doing before she left, on terms that are no less favourable. If you refuse to allow her to do that, she can make a tribunal claim for less favourable treatment by reason of pregnancy and maternity leave, sex discrimination and possibly also unfair dismissal.

As with OML, someone returning from AML is entitled to return to the job they were doing before they went on leave, on terms that are no less favourable. However, if it is not reasonably practical for you to allow the woman to return to her old job (apart from a redundancy situation), you can offer an alternative job that is "suitable" and "appropriate" in the circumstances.

If you make a woman redundant during her maternity leave, you must offer her suitable, alternative employment (if it exists) which is appropriate for her to do. She has priority in being offered alternative work over other staff who are not on maternity leave. The terms and conditions should not be substantially less favourable than her old job.

Statutory Maternity Pay

Statutory Maternity Pay (SMP) is the money that you pay to a pregnant woman for up to 39 weeks if she:

• is pregnant at the 11th week before the expected week of childbirth
• has been in continuous employment for 26 weeks with you up to and including the 15th week before the expected week of childbirth
• has average weekly earnings during an eight week reference period ending with the qualifying week that are high enough to make her eligible to pay class 1 National Insurance Contributions (NICs)
• has given you 28 days' notice as to when you are liable to start paying SMP (or less than that if it is not reasonably practical to give 28 days' notice)
• has produced a medical certificate from a doctor or midwife, which gives the date when she is due to give birth
• has stopped work

The amount you get back depends on your total gross Class 1 National Insurance liability. Currently, if it is £45,000 or less, you are entitled to recover 100 per cent of the SMP you pay out, plus 4.5 per cent compensation for the NICs you pay on the SMP. However, if your annual liability for NICs is always more than £45,000, you are only entitled to recover 92 per cent of the SMP.

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HANDLE WITH CARE

In unfair dismissal cases, tribunals have to decide if the employer genuinely believed on reasonable grounds that the employee was guilty of misconduct and whether dismissal was a reasonable response. In London Ambulance Service NHS Trust v Small, the Court of Appeal advised tribunals to look at how the employer handled the dismissal, rather than the conduct of the claimant.

What happened?

Mr Small had worked for the Trust since 1992, most recently as a paramedic with an unblemished record. However, on 25 July 2005, the Trust received a complaint about the crew's treatment of a patient about two weeks' previously.

Mr Small was interviewed and then suspended along with Mr Crafer, the other crew member, on 3 October. In December the investigating officer recommended that disciplinary charges be pursued and the hearing eventually took place in March 2006. Mr Small was dismissed on 27 March and claimed unfair dismissal.

The tribunal criticised the Trust for the long delays in the procedure and said that the Trust would not have dismissed Mr Small, had it followed a fair procedure. It accepted that dismissal was for the potentially fair reason of conduct, but concluded that the Trust could not show that the decision to dismiss was a reasonable response in the circumstances.

On appeal, the EAT agreed that the dismissal was unfair, saying that the tribunal had adopted the correct approach but remitted the matter of contributory fault to the tribunal because of the failings to which Mr Small had himself admitted.

The Court of Appeal disagreed. In terms of procedural unfairness, it said that although it was obviously good practice to investigate suspected misconduct promptly, the timetable followed by the Trust was not unreasonable.

Instead, it said that the tribunal had fallen into the trap of substituting its own view for that of the employer. It should have confined its consideration of the facts to those relating to the Trust's handling of the dismissal, and not made its own findings about issues that were actually in dispute in the internal proceedings. It advised that, as a general rule in unfair dismissal cases, tribunals should keep their findings of fact on the issue of whether the dismissal was unfair separate from their findings on disputed facts.

The tribunal had, therefore, failed to apply the law correctly. It "should have focused its fact finding on the Trust's conduct of Mr Small's dismissal. Instead, it concentrated on the conduct of Mr Small and it then used findings of fact in order to substitute its views for the grounds on which the Trust actually formed its belief and acted when it took the decision to dismiss".

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AGE-OLD QUESTIONS

Under the 2006 age regulations, employers are allowed to dismiss employees when they reach the normal retirement age of age 65. In Trustees of the National Council on Ageing v Secretary of State for Business, Enterprise and Regulatory Reform, the European Court of Justice (ECJ) said that member states can have a compulsory retirement age as long as they can justify it.

What happened?

The National Council on Ageing (better known as Heyday) asked the High Court to judicially review a number of provisions of the 2006 age regulations, arguing that they did not properly transpose certain provisions of the European Equal Treatment Framework Directive into UK law.

Agreeing that there was some uncertainty, the High Court asked the ECJ to look at regulation 3(1) (which allows discrimination if it can be justified); 7(4) (which allows recruitment discrimination against the over 65s); and 30 (which allows dismissal of the over 65s if the reason is retirement). It asked if these came within the scope of the directive; whether member states can have legislation that allows for justifiable differences in treatment; and whether member states can have the same justification test for direct and indirect discrimination.

The ECJ said that regulations 3(1), 7(4) and 30 did not "establish a mandatory scheme of automatic retirement" as such, but just laid down the conditions under which employers could modify the principle prohibiting discrimination on grounds of age and dismiss or refuse to recruit a worker because they were 65 or over. This provision therefore had to be treated as a rule relating to "employment and working conditions, including dismissals and pay" and came within the meaning of article 3(1)(c) of the directive.

Age Concern argued that because article 6(1) of the directive contained a list of "objective and reasonable justifications" for differences in treatment, member states were therefore obliged to do the same thing when it came to drawing up their own legislation. However, the ECJ disagreed, saying that although the directive was binding "as to the result to be achieved", it was down to national governments to decide on the "forms and methods" of implementation.

Article 6(1) could not therefore be read as requiring member states to draw up a list of the differences in treatment that could be justified. However, as the UK did not have such a list, it was for the High Court to decide whether the regulations were in pursuit of legitimate aims within the meaning of the article.

The ECJ did not think it was necessary to decide whether a different standard of proof applied for direct and indirect discrimination, but that member states had to show that their aims were legitimate "to a high standard of proof".

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IN BRIEF

The Government has just published its long awaited Equality Bill. It is expected to receive Royal Assent in spring 2010, with most provisions coming on line in October 2010.

The main provisions include:

1. Putting a new duty on the Government and key public bodies to consider what action they can take to reduce the socio-economic inequality people face when making strategic decisions about spending and services.
2. Requiring employers with 250 or more employees and public bodies with more than 150 employees to report on the gender pay gap, but not before 2013.
3. Outlawing secrecy clauses in contracts that "gag" employees from discussing their pay.
4. Banning age discrimination against people aged 18 and over outside the workplace, where goods are bought, and services provided, such as in shops, hospitals, and when buying financial products.
5. Allowing employers to choose to take positive action to appoint a person from an under-represented group, provided candidates are equally suitable, if they want to. Positive discrimination will remain illegal.
6. Banning private members' clubs from discriminating against members or their guests, although same sex clubs, gay associations, clubs for people of a particular religion, etc, will still be allowed.
7. Replacing current duties on public bodies with a new streamlined and strengthened equality duty, which will be extended to also cover sexual orientation, gender reassignment, age, and religion or belief, so that people get fairer opportunities and better public services.
8. Making it clear that public bodies can use procurement to drive equality when they are buying goods and services from private sector firms. This will be consulted on over the summer.
9. Strengthening the powers of employment tribunals;
10. Extending the law that bans discrimination by association.
11. Strengthening protection from discrimination for disabled people.

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