Our employment lawyers can also advise in respect of Flexible Working requests and other rights afforded to working parents and carers, such as time off for ante natal appointments or to care for dependants. Where this leads to a dispute with your employer, our employment lawyers can help you raise a Grievance, negotiate a settlement or bring an Employment Tribunal claim where necessary.
Our pregnancy discrimination lawyers have vast experience in this area – our Louise Taft is a panel expert for workingmums.co.uk and Legal Ambassador for Parents in the Performing Arts. She is also a mum, so knows first-hand that you already have a lot on your plate without having to deal with legal proceedings as well. Our employment lawyers combine our knowledge and experience with true empathy so that you have the best possible advice and representation.
We know that money will be tight if you have lost your job because of pregnancy discrimination or you are forced to leave after a Flexible Working request is refused. We assess whether we might be able to offer a no win no fee agreement to bring an Employment Tribunal claim or identify whether you can use existing legal expenses insurance to pay your legal fees. In other cases, we will fix fees where possible so that you can be certain how much you will spend.
Our employment lawyers are based in our London office but can also see you at our Watford Office.
The Equality Act prevents “unfavourable treatment” because of pregnancy, pregnancy related illness and maternity leave. This can range from dismissing or making a woman redundant to adverse comments or exclusion from communications or social events during maternity leave. There is no qualifying period before an employee can bring a claim. Employee has a wider definition under the Equality Act so casual workers and contractors may be covered depending on their particular circumstances. You must act quickly and start your claim within 3 months of the discrimination.
If successful in a claim for pregnancy or maternity discrimination, you can recover any financial loss (such as loss of earnings) as well as a payment for Injury to Feelings.
Where work is of a kind that could involve a special risk to a new or expectant mother or her baby, the employer is under a duty to carry out a risk assessment. Health and Safety Executive guidance suggests that likely risks are work-related stress, long working hours, lifting and carrying, excessive noise, handling chemicals, extremes of heat and cold, and movements and postures. Failing to carry out a risk assessment can amount to pregnancy discrimination.
There is no limit on the amount of time off for ante natal appointments: the right is to paid leave to attend any appointment for ante natal care that you have been advised to attend by a registered medical practitioner, midwife or nurse. Some pregnancies require more appointments than others so whilst the employer is at liberty to ask for proof of an appointment (except for a first appointment), time off to attend should not be refused.
Fathers (or those in a “qualifying relationship”) are now entitled to unpaid time off to attend up to two ante-natal appointments with the mother. On each occasion, the maximum amount of time off is 6½ hours.
A primary adopter is entitled to paid leave for up to 5 appointments, and his/her partner unpaid leave for up to 2 appointments. A maximum of 6½ hours can be taken for each appointment.
All employees (including those on fixed term or part time contracts), regardless of length of service, are entitled to up to 12 months maternity leave, made up of 6 months Ordinary Maternity Leave and 6 months Additional Maternity Leave. You can take less than 12 months leave, but you should give at least 8 weeks’ notice of your intention to return. Entitlement to Statutory Maternity Pay is dependent on length of service, and being paid at least the lower earnings limit for National Insurance over the qualifying period. If you don’t qualify for SMP, you may qualify for Maternity Allowance.
You can choose the start date of your maternity leave from any time 11 weeks before your due date up to the week of your due date. Maternity leave will start automatically if the baby is premature or if you are absent with pregnancy related illness in the 4 weeks before your due date. You can change your mind about the start date but should give 28 days’ notice.
You have the right to return to the same job after Ordinary Maternity Leave. If leave lasts more than 6 months, you can be offered a suitable and appropriate alternative if it is not reasonably practicable for you to return to the same job. Maintaining arrangements made to cover maternity leave is unlikely to fall within this category. There are similar rights after Shared Parental Leave and Adoption Leave.
The risk assessment carried out in respect of new and expectant mothers should cover mothers who are breastfeeding after returning to work. Health and safety obligations require employers to give breastfeeding mothers facilities to rest and have adequate meal breaks. The HSE recommends having somewhere suitable to express and then store breastmilk.
You will continue to accrue holiday but cannot take holiday during maternity leave. If you have not been able to take your holiday because of maternity leave, it should be carried over to the next holiday year.
You can work up to 10 keeping in touch days (KIT days) during maternity leave or 20 KIT days during Shared Parental Leave, without bringing leave to an end. KIT days should be agreed between both employer and employee: there is no right to work a KIT day and no requirement to do so.
Miscarriage before 24 weeks does not give any special right to leave or pay: it is treated as pregnancy related absence. Miscarriage or stillbirth after 24 weeks entitles the employee to maternity leave as if she had a live birth, which would start automatically. She can give notice to return to work, but must not do for at least 2 weeks.
Employees on maternity leave can be made redundant but doing so because of maternity leave is unlawful discrimination. Identifying a position as redundant because of maternity cover arrangements is likely to be considered discrimination. Employees on maternity leave have special rights to be offered suitable alternative employment if their substantive position is redundant.
Fathers or the spouse, partner or civil partner of the child’s mother, with at least 26 weeks’ service 14 weeks before the due date can take paternity leave. Spouses, partners and civil partners who are not the biological father are only entitled to leave if they have the main responsibility for bringing up the child (other than the child’s mother). Biological fathers are not entitled to leave if they do not have any responsibility for the child’s upbringing.
Eligible employees can take either one or two consecutive weeks leave at any time in the baby’s first 8 weeks (or before 8 weeks after the due date if s/he is born early). It cannot be taken after Shared Parental Leave. Statutory Paternity Pay is payable by the employer.
Fathers and eligible partners can be entitled to Shared Parental Leave if the mother gives up her right to maternity leave. Leave can be taken at any time within the child’s first year. Mothers who have given up maternity leave can then share that leave with the father (or eligible partner) if they too are eligible. There are similar rights to return to the same job as after maternity leave, to Statutory Shared Parental Pay and to take up to 20 KIT days.
Employees with 26 weeks service 15 weeks before the due date who have main responsibility (with the other parent) for care of the baby are eligible to take Shared Parental Leave. Where mothers are not themselves eligible because of short service, or they are self-employed or recently unemployed, eligible fathers and partners can still take leave if the mother curtails her entitlement to Statutory Maternity Leave or Maternity Allowance.
Shared Parental Leave need not be continuous, though an employer has the right to refuse requests for discontinuous periods of leave.
Shared Parental Leave can be taken in isolation by one partner, sequentially by both partners or at the same time.
An employer cannot refuse a request for a continuous period of Shared Parental Leave but can refuse discontinuous leave. It is unlawful to dismiss or subject an employee to a detriment because they have requested or taken Shared Parental Leave.
Parental Leave is a period of unpaid leave to which all parents are entitled within the first 18 years of each child’s life. They can take up to 18 weeks in total. They must have been continuously employed for at least a year and be responsible for the child’s upbringing, with the leave taken for the purpose of caring for the child. Under the default scheme, employers are entitled to give notice to postpone Parental Leave where business would be unduly disrupted, except when it is requested immediately after the birth. A minimum of 1 and maximum of 4 weeks’ per year can be taken under the default scheme, in multiples of a week.
An employee who is matched for adoption via an adoption agency, adopts from abroad under the relevant rules of that country, foster parents who adopt through the fostering for adoption scheme and parents of a child born to a surrogate mother may be eligible for adoption leave. Couples will need to nominate who is the “adopter”, who will be entitled to primary leave of up to 12 months akin to maternity leave. The other partner will be entitled to paternity leave of up to 2 weeks. There are similar rights to statutory pay and provisions for returning to work and working KIT days. Adoption leave can start on the date the child is placed or up to 14 days before (except in surrogacy cases, when leave will start on the day the child is born, or the day after if the employee is at work).
The primary adopter can give notice to end adoption leave and take Shared Parental Leave, much in the same way as Shared Parental Leave works after the birth of a child.
Any employee with 26 weeks’ service can request flexible working for any reason, provided that they have not made a request within the previous 12 months.
A formal request for flexible working needs to be in writing, be dated and state that it is an application made under the statutory procedure. It must specify the change that you are seeking and when you wish the change to take effect. It should also explain what effect, if any, you think the change would have on your employer and how any such effect could be dealt with. You must also state whether you have previously made an application to the employer and, if so, when.
To maximise your chances of the request being granted, you should explain exactly how you envisage working under the new arrangement. Try to think of all the potential negative consequences – don’t shy away from them but instead say how you will mitigate them. Stress also the positives – you might be more efficient under the proposed arrangement, or able to speak with customers or suppliers at a time that better suits them.
Employers can refuse a request for flexible working citing
The reason for refusal must be genuine: you can bring a claim to the Employment Tribunal if a flexible working request is refused on incorrect facts. Women might also have a claim for indirect sex discrimination if the request is to enable them to fulfil caring responsibilities.
Granting a request for flexible working is a permanent change to the Contract of Employment unless otherwise agreed, though it is possible to agree a trial period. A temporary change could be agreed if the request is only to cover a short period of time, perhaps in transitioning back from maternity leave or whilst still breastfeeding.