Maternity Myths

One of the most confusing areas of law both for employer and employee are the rights under the maternity legislation. Nothing can beat getting information at the earliest opportunity from a reliable source.

The following however are some of the most common misconceptions.

Can an employer contact an employee whilst she is on maternity leave?

An employer can and indeed should maintain contact with its employees, keeping them up to date about any developments within the business such as pay rises, vacancies, redundancies etc. Failure to do so could be considered sexual discrimination. This must be handled sensitively, an employee on maternity leave certainly doesn’t want to get emails every day.

I cannot be made redundant if I am pregnant or on maternity leave?

Many employees believe this to be the case but in fact it is not. If there is a genuine redundancy situation and the employee has been fairly selected using the right sort of criteria, then that employment can be terminated. However, any redundancy selection criteria must not take into account reasons connected to pregnancy for instance sick leave due to pregnancy related illness. Those on maternity leave and other types of statutory parental leave must also go to the front of the queue if there are any suitable alternative vacancies being suggested in order to avoid the redundancy.

Employers don’t need to pay people on maternity leave holiday pay?

Whilst an employee is on maternity leave, they continue to accrue holiday. It is not right that employees can mix this type of leave, so it is usually the case that holiday leave is either tacked on to the beginning or end of maternity leave or carried over into a subsequent holiday year.

An employer can require an employee to do a different job when they return from maternity leave having been off for 12 months or more?

Someone on maternity leave has the right to return to the same job. An employer must keep the job open and cannot decide that they like the maternity cover better and don’t want their employee to return. There is an exception to this which is where it is not reasonably practicable. For instance, if there has been a reorganisation and the job no longer exists. In those circumstances someone returning from maternity leave must be given another suitable job which is appropriate in terms of pay and seniority.

Does an employer have to pay an employee a bonus whilst they are on maternity leave?

The key to answering this question is how the bonus is structured and/or what it reflects. A woman is entitled to all her contractual benefits (excluding her normal remuneration) whilst on maternity leave. There have been many cases on this and the answer to the question will very much depend on the facts of the case. Employers pay bonuses for all types of reasons to encourage loyalty or reflect company performance. The answer lies in the issue of is the bonus a form of remuneration and whether or not it is contractual.

Is it acceptable for an employer to ask an employee about their family
or plans to have a family at interview?

I think most people know that this is not a question that should be asked. The fact is that if you ask everybody you interview on this regardless of sex it is less likely to be supporting evidence of a discriminatory attitude. It is however simplest not to ask the question, so the presumption does not have to be rebutted.

Must I tell an employer if I am pregnant when I am applying for the job?

Some employers have tried to argue that failure to disclose at interview a pregnancy suggested a lack of integrity and it was for this reason they were dismissed not the impending pregnancy. The courts have generally not accepted this argument. Dismissal because of pregnancy or any reason connected to it is automatically unfair and such claims can be brought regardless of how long someone has been employed.

Smaller employers are exempt from pregnancy maternity laws?

Not true. There has been discussion about reducing the rules for very small employers but as, yet this has not been taken up. All employers regardless of size must comply with the rules.

Amanda Finn can be contacted at a.finn@gullands.com