By Rebecca Bridges at Taylor Rose Law LLP
Modern changes in employment law have tried to help strike a balance between those who want to raise a family, whilst also still being able to work/return to work. These are often referred to as ‘family-friendly policies’. Some employers just provide access to the basic legal requirements, where others will go above and beyond the legal provisions, such as those employers who provide crèche facilities or higher contractual maternity pay. It is worth noting that employees are a huge overhead for any business, employees are assets but also arguably liabilities. We also see some employers keen to facilitate and aid the return to work because a particular employee has inside knowledge of the business and industry and replacing them would cause difficult. Here is some basic facts/information:
• If you are dismissed from your employment for a reason related to the fact that you are pregnant or given birth, then you may be able to bring a claim for unfair dismissal and there is no requirement for you to have worked any length of time, as is true in most unfair dismissal cases where two years service is required.
• There are three types of maternity leave; compulsory, ordinary and additional. An employer is not allowed to let an employee to return to work within the first two weeks following the baby’s birth, this is compulsory leave. When ordinary and additional maternity are added together, an employee will benefit from up to 52 weeks statutory maternity leave. Ordinary leave is for 26 weeks and can be extended (additional maternity) by another 26 weeks, provided the correct notice is served by the employee to the employer. An employee can return to work for up to ten days during this time, these days being referred to as KIT days, that is keeping in touch days, this can help you feel that you are still included about changes and goings on. Whilst a woman has the right to 52 weeks off, Statutory Maternity Pay will only be paid for 39 weeks (9 months), with different rates applicable at different periods and is subject to eligibility criteria linked to length of service.
• The biggest news this year with respect of maternity leave is the ability for a woman to be able to share it, i.e. shared parental leave. A new scheme has recently been induced with effect from and on 5 April 2015, where a child’s expected week of childbirth or a child who is placed for adoption is on or after 5 April 2015. This means that partners can share parental leave in the first year of their child’s life or in the first year after their child’s placement for adoption. This may see more business women returning to work and their partners staying at home to care for the family.
• During the maternity period unfavourable treatment of a woman because she is pregnant or on maternity leave is unlawful. If an employer selects a woman for redundancy because of her pregnancy, maternity leave or a related reason, that is an automatically unfair dismissal and unlawful discrimination. Failing to consult a woman on maternity leave about possible redundancy is also likely to be unlawful discrimination. It is possible for an employer to make an employee who is on maternity leave redundant, provided there is a genuine redundancy and a fair procedure/process is followed, but the starting point is that a woman has the right to the same job and the same terms and conditions as if you she had not been away. However, if your employer shows it is not reasonably practical to return to your original job you do not have the same right. In that case, you must be offered alternative work with terms and conditions as if you hadn’t been away; you would not be required to apply for that role.
• Both parents can ask (provided they can evidence responsibility and have at least a years’ service) for unpaid time off work during the first five years of a child’s life/after adoption and in cases involving children with disabilities, then this right extends until they are 18, this is known as parental leave. Parental leave can be taken up to a total of 18 weeks per child. The request for leave has to be for at least a week, but less than four weeks in any year. Employees need to give their employers the correct amount of notice to affect this. Employees have the right not to suffer any detriment and can present claims accordingly to the Employment Tribunal if they do, as well as claims of unreasonable postponement of parental leave.
• Parents can also request time off work for urgent family reasons; this is often referred to as time off for dependants. The right is to time off, unpaid. This right extends to a larger family situation and can cover time off needed to support your spouse, children, parent, anyone living in the same household or anyone relying on the employee for help, this group is often referred to as ‘dependant’s’. There are also prescribed situations, in order for you to be able to request the time off, such situations include: where a dependant: falls ill, is injured, gives birth, dies, needs longer term care arranging and unexpected incidents at school. The right is for a reasonable amount of time off and will therefore be case specific. The purpose of this is to allow an employee to deal with emergencies and so notice may not be possible, but you will need to explain to your employer the reason for your absence as soon as reasonably practicable. If an employee is denied this right, you can bring a claim for compensation. If you are dismissed due to a poor attendance record, if this right has been triggered, your dismissal may be deemed automatically unfair and so employers need to be careful.
• An employee is also allowed to ask their employer for changes in their contract in order to care for their young or disabled children, or even certain adults. Requests can be made for changes on hours of work, place of work (this could include a request for home working), pattern of work (spreading the hours over a longer period for example) job sharing, or time of work. An employee will need to be eligible to make such a request, this includes amongst other criteria, the requirement to have 26 weeks service.
It is therefore quite clear that there are a number of laws and regulations which aid women to raise a family and return to work. Perfect for Mumpreneurs looking to conquer the world of business!
Rebecca Bridges (LLB Hons)
Taylor Rose Law LLP