MNHQ here. A new FREE legal advice clinic from Maternity Action about pregnancy, maternity or parental issues at work

(25 Posts)
AnnaCMumsnet (MNHQ) Fri 18-Sep-20 09:39:59

Mumsnet and Maternity Action are teaming up once again to provide an online legal clinic, offering free advice on pregnancy, maternity and parental rights at work from volunteer employment solicitors and barristers who are members of the Employment Law Association.

Maternity Action reports huge demand for its advice line, especially topics such as redundancy during maternity leave, return to work and maternity pay, and on Mumsnet's Talk forums, the topic of employment rights is a hardy perennial.

The clinic will respond to this demand in a hopefully innovative way, providing free, accurate, public advice online and raising awareness of parents' rights at work. It will also enable Maternity Action and Mumsnet to identify trends and produce permanent content to address areas in which employers and workers could benefit from clear, upfront guidance.

The clinic will take the form of a 'Q&A' session on this thread - you can post your questions on pregnancy, maternity and parental rights at work.

Specialist solicitors and barristers will take necessary additional detail via private messaging before posting up answers and advice.

The clinic will run for a week from Monday 21st to Friday 25th September (and will be held on a quarterly basis). We will do our best to provide all answers during the week but, at the latest, by the Monday of the following week. You can find information on where to go for more help once the clinic has ended here.

What to do if you’d like to post a question
1) If you have a question about your rights at work during pregnancy, maternity or parental leave please post it online during the week of the clinic. Please give as much information as possible but remember that this is an online forum and can be viewed by the public – including your colleagues and employer. Please don’t name your employer publicly if you are likely to be taking action against them in future. You can use the private message facility to disclose any information you would prefer to keep off the public forums.

2) Please send your name and the name of your employer by private message to MaternityActionfreeadvice so that it can be passed on to the volunteers to do a conflict of interest check. We cannot post a reply until you have sent this information by private message.

3) Once your advice has been posted online, you will have an opportunity to provide feedback. This helps us to find out whether you found the advice helpful, whether it helped you to resolve your situation at work and some information about you. All survey responses are anonymous and confidential. Providing feedback will help us to see what improvements can be made in developing this type of online free legal advice clinic. You can fill out the survey here.

Ts and Cs – please read
The advice provided to an individual poster is based only on the information provided by that poster. Advice on this thread is also particular to the individual who has asked for it and is likely to be specific to that person’s situation. A poster may have provided further relevant information by private message, which will not appear on this thread. So please take care if you choose to apply that advice to your own situation - it is recommended that you first take legal advice from one of the sources we have suggested here.

Mumsnet, Maternity Action and Maternity Action's volunteers accept no liability for any loss suffered as a result of an individual choosing to follow advice provided to another poster's question on the thread.

The lawyers, all of whom are specialists in employment law, will be working as volunteers for Maternity Action in respect of the clinic. Any personal information collected as a result of the clinic will be held by Maternity Action and will be deleted after 18 months. If you wish to make a complaint about the service you received, you can use Maternity Action’s complaints policy here.

OP’s posts: |
Jinga Mon 21-Sep-20 21:54:45

This is amazing thank you so much. I do have a question but I'll post once I'm up on my sleep and under a different username possibly! Thank you ☺️ Xxx

BbcBreakfastisCrap Tue 22-Sep-20 00:41:22

This is an excellent idea, thank you Mumsnet.

Mommato2under2 Tue 22-Sep-20 16:02:54

Hi!!
I was put on furlough back in May (same time my mat leave ended) and was due to go back to work part time. I’ve been paid furlough at 80% of my part time wage since my mat leave ended. I’ve been told however that my furlough pay should have been calculated based on the previous years full time contract? Could you clarify for me, ACAS have told me I’m correct, a section on your website says the same thing however after bringing it up with my employer multiple times their payroll department and their HR Advice line has told them I’m wrong? I don’t want to push the issue unless I’m right as it’s going to make my return to work very uncomfortable. Thanks!

maternityaction.org.uk/covidmaternityfaqs/ see Furlough during the COVID-19 pandemic, section 14

RockieRoadie Tue 22-Sep-20 17:02:42

I work as a teacher and I'm trying to work out my position when I reach 28 weeks. I understand I'll be classed as clinically vulnerable and the government advises to work at home if possible at that stage. Now I believe it should be possible as a variety of colleagues have done so but under different circumstances and I believe this sets the precedent. One colleague returned from a country late in August and had to quarantine, so they delivered live video lessons via Teams with cover supervisors setting it up in the lesson and monitoring behaviour. Another colleague is self isolating due to a family member having Covid symptoms, that colleague is currently delivering live video lessons on Teams with another member of staff setting it up and monitoring behaviour. Therefore am I right in thinking that this should be the set up as of 28 weeks for me and all my other pregnant colleagues? We are concerned that the School may state they are safe and enough for us and if we did want to stay home then it would trigger our maternity leave which obviously I feel would not be right.

Wellibobs12 Tue 22-Sep-20 20:39:04

Where do we send the conflict of interest details? It says to 'MaternityActionfreeadvice' but on what platform? I'm keen to ask my question here as I've been trying really hard to speak to someone but the lines are always busy!

Doughnut100 Tue 22-Sep-20 20:53:07

I would also like to know on which platform we send the conflict of interest details please.

I have been furloughed and when the furlough scheme ends as an alternative to redundancy I have signed a contract saying I will take a 6 month sabbatical. I am happy with this, I think the company has been fair and due to Covid it has no income. I have also signed an amendment to my original contract saying that when I return to work I will return on reduced hours and salary.

I am 8 weeks pregnant and my EDD is a month after I am due to return from sabbatical. Do I still have a right to maternity leave and SMP? I presume the SMP would be calculated on the reduced salary I have agreed to?

RockieRoadie Tue 22-Sep-20 21:00:03

@Wellibobs12 @Doughnut100 I searched for MaternityActionfreeadvice in the search options found one of their posts and clicked on the options to PM them. It could be useful @AnnaCMumsnet if they could post on here and posters can just pm them directly rather than searching if that's possible 🙂?

Wellibobs12 Tue 22-Sep-20 21:41:59

I am 5 months into my maternity leave. I work in a school and there has been some restructuring due to funding issues. My role is being deleted. There are two of us who do this role but only me on maternity leave. They have 'ring fenced' myself and the other member of staff for 2 roles. One which is very similar to my previous role and a second which is very different. I have registered my interest in the similar role and told my boss that I am not interested in the other. Both roles are full time and previous to going on Mat leave I was working part time.
I would like to know if I should be offered this role or if they are justified in asking me to apply (myself and the other member of staff are both interested in the same role.) I have read advice which suggests that I should be given priority over the other member of staff because I am on Maternity leave. I also want clarity on whether they can call me in to interview when I am on mat leave. I feel strongly that I am at a disadvantage because my head simply isn't in 'work mode' and I would struggle in an interview at present. If it does go to interview and I'm not successful am I then made redundant? The new role is also at a lower grade and lower pay than I was on previously although my salary has been protected for 2 years. I would appreciate any advice on the matter.
Thank you.

Please let me know where I send the details to. I would really like some clarification and I am struggling to get through to the maternityaction line.

MaternityActionfreeadvice Wed 23-Sep-20 10:35:58

Thank you to all the posters so far, some we have messaged asking for further information.

If you wish to post once writing your query on this thread, please PM to this profile with your full name and the name of your employer. This is used by our volunteers to perform a conflict check and for no other reason. Your details will not be stored or used for any other purposes.

Hoping to get some replies out as soon as possible.

Many thanks!

MaternityActionfreeadvice Wed 23-Sep-20 11:38:46

Doughnut100

I would also like to know on which platform we send the conflict of interest details please.

I have been furloughed and when the furlough scheme ends as an alternative to redundancy I have signed a contract saying I will take a 6 month sabbatical. I am happy with this, I think the company has been fair and due to Covid it has no income. I have also signed an amendment to my original contract saying that when I return to work I will return on reduced hours and salary.

I am 8 weeks pregnant and my EDD is a month after I am due to return from sabbatical. Do I still have a right to maternity leave and SMP? I presume the SMP would be calculated on the reduced salary I have agreed to?

Dear Doughnut100

Thank you for your query.

You will be entitled to maternity leave on your return from sabbatical (which gives you the right to 52 weeks leave and to return to the same job at the end), however, if your sabbatical is unpaid it is unlikely you will be able to qualify for SMP.

You are entitled to SMP if you have been employed for 26 weeks by the 15th week before your expected week of childbirth (EWC) and you have average weekly earnings of at least £120 per week in the eight weeks or two months prior to the end of the 15th week before your EWC. This period is approximately weeks 18 to 26 of your pregnancy.

You should check the details of your sabbatical arrangement to ensure that you remain an employee throughout that period. If you are not being paid during the sabbatical and this falls in the middle of your pregnancy you will not be able to qualify for SMP. If that is the case, you can claim Maternity Allowance from DWP.

You will need to show you were employed for at least 26 weeks in the 66 weeks before your EWC for Maternity Allowance so, again, if you remain employed throughout the sabbatical those weeks will count towards your employment condition. You should also send in payslips covering a 13 week period (4 monthly payslips). You should send the payslips with your highest earnings in the 66 week test period in order to qualify for the full rate. Maternity Allowance is £151.20 pw for 39 weeks or 90% of your average weekly earnings (if lower). You can find the claim form here: www.gov.uk/government/publications/maternity-allowance-claim-form

I hope that helps.

MaternityActionfreeadvice Wed 23-Sep-20 11:48:23

Mommato2under2

Hi!!
I was put on furlough back in May (same time my mat leave ended) and was due to go back to work part time. I’ve been paid furlough at 80% of my part time wage since my mat leave ended. I’ve been told however that my furlough pay should have been calculated based on the previous years full time contract? Could you clarify for me, ACAS have told me I’m correct, a section on your website says the same thing however after bringing it up with my employer multiple times their payroll department and their HR Advice line has told them I’m wrong? I don’t want to push the issue unless I’m right as it’s going to make my return to work very uncomfortable. Thanks!

maternityaction.org.uk/covidmaternityfaqs/ see Furlough during the COVID-19 pandemic, section 14

Dear Mommato2under2,

Thank you for your enquiry. Based on the information you have provided you have good grounds for arguing that your furlough pay should have been paid at 80% of the full time salary you were earning prior to your maternity leave.

I can see why your employer might be confused about this especially if it was specifically agreed prior to your return that your hours would change when you came back from your leave (unless for some reason you agreed that your part time contract would start prior to your return – I think that is unlikely). If the change to your hours was agreed but no specific start date was discussed the implication is of course that the change would take effect when you returned – any entitlements you had prior to that point would therefore be based on your full time contract. Your employer has focussed on your proposed new contractual hours had you been able to return to work. Your employer may well also have been worried about accidentally overclaiming furlough payments from HMRC and resulting penalties.

Assuming you are and were paid a fixed regular salary, the published government guidance states that to work out the 80% furlough payment you should start with the wages payable to your employee in their last pay period on or before 19 March (2020) and use 80% of that figure. Presumably for you this will be on or around April 2019. The guidance also states that for employees on fixed pay, claims for employees furloughed on return statutory maternity leave should be calculated against their salary, before tax, not the pay they received whilst on leave. There is nothing in the guidance that specifically covers the situation you are in, where you have been on leave and agreed a change in your hours on your return but you have not actually returned to work and gone straight on to furlough. However the guidance is clear that it is the last pay period on or before 19 March that is the relevant one, based on your salary, not SMP or contractual maternity pay.

If your employer had worked from the published guidance at the point of your return it could therefore have paid you at 80% of your full time rate and recovering that from HMRC would have complied with the guidance.

I would suggest the following next steps:

You should specifically ask your employer whether they would be willing to treat you as full time during the furlough period. If they don’t agree to this, you need to ask them for written reasons, because it could amount to less favourable treatment because you have taken maternity leave and therefore pregnancy discrimination (especially if, for example, they had delayed making others who had not been on leave redundant so they could benefit from the furlough scheme or had delayed previously agreed flexible working requests or other contractual changes for other employees so they could benefit from the scheme to a higher degree).

You should also ask them to commit to you returning to work part-time as originally planned when your furlough period ends.

If they are in agreement, you should ask your employer’s payroll/HR team to take specific advice on amending their claim from HMRC while the furlough scheme is still open. If HMRC agrees that they have underclaimed they should still be able to amend their claim and they can then pass on the difference between the part time and full time furlough pay to you at no cost to themselves. If they delay and don’t seek clarification before the scheme closes they are unlikely to be able to amend their claim and would potentially have to fund the difference themselves.

If you cannot resolve the issue you may have claims for unpaid wages and pregnancy/maternity discrimination. You would have 3 months less one day from the date you are last paid incorrectly to register your potential unpaid wages claim with ACAS, and 3 months less one day from the date your employer gives you its final decision on paying you based on part/full time pay to register your potential discrimination claim with ACAS (bear in mind that if your employer is not willing to enter further dialogue with you on this matter, then it may have already made its final decision).

Doughnut100 Wed 23-Sep-20 12:25:30

@MaternityActionfreeadvice

"Dear Doughnut100

Thank you for your query.

You will be entitled to maternity leave on your return from sabbatical (which gives you the right to 52 weeks leave and to return to the same job at the end), however, if your sabbatical is unpaid it is unlikely you will be able to qualify for SMP. "

Sorry I'm not sure how to quote your text properly.

I should have said in my original message - I am being paid a nominal amount during my sabbatical, a couple of hundred pounds a month to reflect a salary that's been temporarily reduced to £2400. Does this mean I do qualify but my SMP will be calculated on this tiny amount? Or as it doesn't reach the threshold will I just not qualify?

Thank you

Asianchick6693 Wed 23-Sep-20 12:52:28

Hi, I am 29 weeks pregnant suffering from really bad PGP. I work in a laboratory at an NHS hospital. I have had physio(referred to by work right from as early as 2 months pregnant but didn't get an appointment until I was 4 months). So far they have all been telephone and video consultations with my PGP progressively getting worse. I have had to take sick leave as I am in agony and now the physio department have finally agreed to see me and try different forms of treatment.

My question is my hospital mat policy states that maternity leave will automatically comment on week 36 if I am off sick. However prior to 36th week, all sickness pregnancy related will be treated as usual without considering these sicknesses for management purposes.

Can I take sick leave up until 36 weeks and by law can my employer make me start my maternity leave early? Starting mat leave early will affect me financially which is why I ask and my PGP is only aggravated by being at work.

I ask because I have been advised against it and have been told that my employer will make me start my mat leave early, the other alternative that has been suggested by my physio is reduced hours at work. My concern is, the reduced hours will not take away my PGP as just by performing tasks at work causes it to get really bad as well as the financial effect as my pay will be reduced. Hope I can get some answers thank you.

Asianchick6693 Wed 23-Sep-20 13:05:02

Also want to know how to PM so I can get an answer thanks!

MaternityActionfreeadvice Wed 23-Sep-20 13:30:27

Doughnut100

*@MaternityActionfreeadvice*

"Dear Doughnut100

Thank you for your query.

You will be entitled to maternity leave on your return from sabbatical (which gives you the right to 52 weeks leave and to return to the same job at the end), however, if your sabbatical is unpaid it is unlikely you will be able to qualify for SMP. "

Sorry I'm not sure how to quote your text properly.

I should have said in my original message - I am being paid a nominal amount during my sabbatical, a couple of hundred pounds a month to reflect a salary that's been temporarily reduced to £2400. Does this mean I do qualify but my SMP will be calculated on this tiny amount? Or as it doesn't reach the threshold will I just not qualify?

Thank you

Dear Doughnut100

Thank you for the further information. Unfortunately you will need to earn at least £120 per week in the relevant period to qualify for SMP. If your earnings are just above £120 per week you will qualify for SMP but it will be based on the reduced amount. If your earnings are below £120 per week, your SMP will be refused and you should start your Maternity Allowance claim.

You should give your employer notice of the date you want to start your maternity leave and pay by the 26th week of pregnancy and give them your MATB1 maternity certificate so they can work out if you are entitled to SMP. You can also find a maternity calculator here: www.gov.uk/pay-leave-for-parents

I hope that helps to clarify things.

Mommato2under2 Wed 23-Sep-20 15:40:01

Thanks so much for getting back to me!!
We did agree that I would return part time once my maternity leave ended and the date that would be and I think this is the basis of their argument? I never signed a contract to say my new hours would begin on that date but I think we had a telephone conversation where we discussed this and it was generally understood that it would be the case. Does this therefore remove my right to have claimed full pay? I’ve actually returned to work now and had a couple of chats with my employer however they seem set in the advice they have received from the outside HR/Payroll companies they use as consultants. (Just to clarify neither of these companies have anywhere for employees to contact and are solely for the employers use, hence me contacting you here.)

EnglishRain Thu 24-Sep-20 05:40:51

My employer started a consultation into my team before covid. I informed them of my pregnancy and they paused the consultation stating it was due to covid, even though they had booked the meetings electronically once finding out about covid. They have now said they are not doing the consultation until myself and another colleague return from maternity leave. They won't discuss possible part time options or flexible working because they say it's impossible to know what the situation will be like in another six months. They have implemented the proposed structure from the consultation since I have been on mat leave.

My concern is that they intend to downgrade my post/make me redundant when I return from mat leave. It appears they are waiting until mat leave ends because I then lose the protection of being entitled to be offered a suitable alternative vacancy (there is a new post in the structure which would be a suitable alternative). They had told me I would have to apply for the role, but I said I understood that I should be offered a suitable alternative without interview prior to colleagues not on mat leave. This was when they changed their tune and said nothing will happen until I go back. I am also really stressed because I will also need to sort childcare. When will my employer have to confirm what my role will be, do they need to give me a period of notice? And how would I 'prove' they've delayed the consultation until my protected period whilst on mat leave, has ended?

MaternityActionfreeadvice Fri 25-Sep-20 10:29:45

Mommato2under2

Thanks so much for getting back to me!!
We did agree that I would return part time once my maternity leave ended and the date that would be and I think this is the basis of their argument? I never signed a contract to say my new hours would begin on that date but I think we had a telephone conversation where we discussed this and it was generally understood that it would be the case. Does this therefore remove my right to have claimed full pay? I’ve actually returned to work now and had a couple of chats with my employer however they seem set in the advice they have received from the outside HR/Payroll companies they use as consultants. (Just to clarify neither of these companies have anywhere for employees to contact and are solely for the employers use, hence me contacting you here.)

Dear Mommato2under2

If the date you agreed for the change in your hours was when you returned to work at the end of your maternity leave then my advice would remain the same. Up until that point your contract will have continued to be for full time hours, your holiday pay should have accrued based on full time hours, and your furlough pay could have been calculated based on 80% of those hours.

Even if you agreed an earlier date, the last time you were paid would have been at your full time rate.

I hope they are willing at least to speak to the HMRC helpline about this in order to help resolve it for you.

MaternityActionfreeadvice Fri 25-Sep-20 12:00:50

Wellibobs12

I am 5 months into my maternity leave. I work in a school and there has been some restructuring due to funding issues. My role is being deleted. There are two of us who do this role but only me on maternity leave. They have 'ring fenced' myself and the other member of staff for 2 roles. One which is very similar to my previous role and a second which is very different. I have registered my interest in the similar role and told my boss that I am not interested in the other. Both roles are full time and previous to going on Mat leave I was working part time.
I would like to know if I should be offered this role or if they are justified in asking me to apply (myself and the other member of staff are both interested in the same role.) I have read advice which suggests that I should be given priority over the other member of staff because I am on Maternity leave. I also want clarity on whether they can call me in to interview when I am on mat leave. I feel strongly that I am at a disadvantage because my head simply isn't in 'work mode' and I would struggle in an interview at present. If it does go to interview and I'm not successful am I then made redundant? The new role is also at a lower grade and lower pay than I was on previously although my salary has been protected for 2 years. I would appreciate any advice on the matter.
Thank you.

Please let me know where I send the details to. I would really like some clarification and I am struggling to get through to the maternityaction line.

Hi Wellibobs12,

I’m sorry to hear that you have been affected by redundancy. As you say, individuals on maternity leave have certain protection in a redundancy situation. They are not protected from selection and can still be made redundant, however, you may have a right of first refusal for the alternative role you mention, which I will talk about more below.

As a quick bit of background, it sounds like both you and your colleague who performs the same role have been provisionally selected for redundancy because that post is disappearing. As such, I’ve assumed it is not, for example, the case where 2 out of 4 people doing the same job are at risk, and that as such there was no scoring process carried out to decide who fell to the bottom of the list (if there has been and some people doing the same or similar role to you have not been placed at risk, you might want to think about whether the scoring was carried out fairly, and for example, they didn’t mark you down for reasons connected with your maternity leave). It could also be relevant to check that your employer was right to single out the role performed by you and your colleague. If others do a similar job to you, then you may want to ask why those others were not included in the “pool” of people at risk.

Assuming there is nothing untoward as explain above about how you have ended up at this point, we now need to look at how to approach the new roles. In particular you asked:

Should I be offered this role or are they justified in asking me to apply (myself and the other member of staff are both interested in the same role.)?

If you are absent on maternity leave at the time of redundancy, you will have a right of first refusal for any “suitable alternative vacancy” if such a role is available, even if you are not the employer’s first choice. The role must be a “suitable alternative vacancy” for this protection to apply. The role which is very different to your current role is unlikely to fall into this category so the question is whether the other available position, which is similar, could be.

To be classed as a “suitable alternative vacancy”, the work involved in the new role must be suitable, appropriate and the location and other terms and conditions not substantially less favourable than in your current job. As the alternative vacancy is at a lower grade, lower pay and full-time as opposed to your current part-time job, it might be argued that it is on substantially less favourable terms and therefore not a “suitable alternative vacancy”. On the other hand, the fact that it is full-time might make it more favourable as your hours would not be cut, albeit on a lower pay. It is therefore not clear whether this available role is a suitable alternative that you should be given first refusal on, or whether it is different enough to be equally open to you and the other member of staff at risk of redundancy to apply for. It is then in your interest to be able to show that the role should legally be classed as a “suitable alternative vacancy”.

Your employer might already have classed it as a “suitable alternative vacancy” and perhaps just wanted to ascertain your interest in the role in the first instance before offering the role to you as a priority. It might be worth you raising this with your employer, explaining that you understand the role is a “suitable alternative vacancy” and checking that this is therefore going to be offered to you, whilst being prepared to explain your reasoning.

Can they call me in to interview when I am on mat leave?

That’s a difficult position to be in. If the role is classed as a “suitable alternative vacancy” then you are not required to go through an application or interview process where the other member of staff is not protected and you have the right of first refusal. However, if the role is not a suitable alternative and is therefore open for application then you may need to apply in the usual way. Legally there is no concrete answer on asking you back in during maternity leave for this purpose. In practice, if an interview process is required, your employer would have to give you sufficient notice and should ask you to use a Keeping In Touch (KIT) day and pay you for it (assuming the other candidate is attending on work time). If you have used up your 10 KIT days, then that could cause a problem because technically working on an 11th day would automatically terminate your maternity leave. You should also explain that you will be disadvantaged as a result of your maternity leave and no longer being in work mode. Ideally the employer would then factor that in, and certainly if they don’t you could argue that they discriminated against you on grounds of sex/maternity leave. If you are breastfeeding you may need to flag that too in case it impacts on you attending interview. It would be discriminatory if they took into account the fact that you are still on maternity leave as a reason not to offer you the role.

If I go to interview and I’m not successful am I then made redundant?

Yes, if you do interview for the role (due to it not being a suitable alternative) and are not successful then you could be made redundant.

The new role is also at a lower grade and lower pay than I was on previously although my salary has been protected for 2 years.

You would still retain your continuity of employment. Otherwise, the new role would essentially be a new contract and so the terms and conditions are allowed to differ. Be mindful that, in order for the role to be classed as a “suitable alternative vacancy” and for you to therefore be automatically offered the role, you may find yourself arguing that the terms are not substantially different.

While I have flagged some discrimination concerns, I suggest raising these issues positively and working with your employer. You are keen to be offered the new job and so want to encourage your employer to offer you it either automatically or after interview. If they are not amenable to these suggestion you can then consider whether it is necessary to be more forceful about the discrimination angle/appeal against their decisions/raise a grievance (formally or informally) or pursue your rights in the tribunal. I recommend trying to get this resolved amicably. A word on timescales though: if your employment does end by reason of redundancy, you have 3 months from the termination date to start a tribunal claim process via ACAS.

AnnaCMumsnet (MNHQ) Fri 25-Sep-20 17:00:41

Hello

We're closing this thread to new queries now.

Thank you so much to everyone who's posted questions this week. And a very big thank you to Maternity Action and their very helpful volunteers. Anyone who needs advice can always contact Maternity Action directly.

Thanks
MNHQ

OP’s posts: |
MaternityActionfreeadvice Tue 29-Sep-20 16:47:52

Asianchick6693

Hi, I am 29 weeks pregnant suffering from really bad PGP. I work in a laboratory at an NHS hospital. I have had physio(referred to by work right from as early as 2 months pregnant but didn't get an appointment until I was 4 months). So far they have all been telephone and video consultations with my PGP progressively getting worse. I have had to take sick leave as I am in agony and now the physio department have finally agreed to see me and try different forms of treatment.

My question is my hospital mat policy states that maternity leave will automatically comment on week 36 if I am off sick. However prior to 36th week, all sickness pregnancy related will be treated as usual without considering these sicknesses for management purposes.

Can I take sick leave up until 36 weeks and by law can my employer make me start my maternity leave early? Starting mat leave early will affect me financially which is why I ask and my PGP is only aggravated by being at work.

I ask because I have been advised against it and have been told that my employer will make me start my mat leave early, the other alternative that has been suggested by my physio is reduced hours at work. My concern is, the reduced hours will not take away my PGP as just by performing tasks at work causes it to get really bad as well as the financial effect as my pay will be reduced. Hope I can get some answers thank you.

Dear Asianchick6693,

Congratulations on your pregnancy and I am sorry to hear you are suffering from PGP.

Your employer has additional obligations to protect your health and safety when you are pregnant and being signed off as sick may not be the most appropriate outcome for you.

Unless your employer offers you contractual sick pay and maintain your salary, being put on sick leave during week 18 to 26 (approximately) of your pregnancy will also have affected your maternity pay.

If your sick leave is being caused by your working conditions, you should ask your employer to take action to protect your health and safety.

Firstly, your employer should carry out a risk assessment to assess the risks that you may be exposed to at work. This should be specific to you and take account of your diagnosis and the advice of your doctor or physio. From your description, working as normal is not possible for you at the moment. The first step following the risk assessment would be to remove any identified risks. Some possible outcomes of the risk assessment process may be to make sure you can be seated at your work station, or provide other equipment that may help with your condition.

If the risks cannot be removed, then your employer should alter your working conditions or hours of work to avoid any significant risk. This may include reduced working hours, although it sounds like that will not assist in your case. An alternative may be to allow you to work from home; again that may not be possible given the nature of your job. It is difficult to advise on what may work for your situation without knowing full details of your role and this is something that you should discuss with your managers. A reasonable suggestion may be for you to carry out the "paperwork" aspects of your job only so you could remain seated.

If it is not reasonable to alter your working conditions or hours of work, or if the risk cannot be avoided, the employer must offer you suitable alternative work where it is available. This will be a temporary change of role only. Again, it is difficult to advise on what this might look like without full details of your role, but perhaps an administrative role that could be performed from home. The role must be suitable and appropriate and the terms and conditions for the alternative role should not be substantially less favourable that your current terms and conditions.

If there is no suitable alternative work available, or if you reasonably refuse the alternative work offered (because it is on significantly less pay for example) then you should be suspended and you should continue to receive your normal pay. This may be calculated as your normal base pay excluding commission overtime and bonuses, or it may be calculated by taking an average of the previous 12 weeks, depending on your contract of employment.

I appreciate that you may struggle to get the level of engagement from your employer to get through these steps quickly and in the meantime, you may have to be on sick leave if working is extremely painful for you. However, if the level of pay you will receive through suspension is higher than your level of sick pay, then it would be worth pushing your employer to take these steps as quickly as possible or suggesting that you be suspended if you think that is the only plausible outcome.

But it is important to be clear on the difference between a a health and safety risk posed by your working conditions as opposed to a health problem caused by your pregnancy. If there is a risk posed by your role, then your employer needs to make these adjustments and if these are not possible, suspend you on full pay. If however the problem is simply that your are too ill to work, and this has nothing to do with your work environment or your role, then you should remain on sick leave and your employer would not be obliged to suspend you on full pay.

You ask if your employer can start your maternity leave early at 36 weeks. Sadly the answer is yes whether you are suspended on full pay or on pregnancy related sick leave.

MaternityActionfreeadvice Tue 29-Sep-20 16:50:01

EnglishRain

My employer started a consultation into my team before covid. I informed them of my pregnancy and they paused the consultation stating it was due to covid, even though they had booked the meetings electronically once finding out about covid. They have now said they are not doing the consultation until myself and another colleague return from maternity leave. They won't discuss possible part time options or flexible working because they say it's impossible to know what the situation will be like in another six months. They have implemented the proposed structure from the consultation since I have been on mat leave.

My concern is that they intend to downgrade my post/make me redundant when I return from mat leave. It appears they are waiting until mat leave ends because I then lose the protection of being entitled to be offered a suitable alternative vacancy (there is a new post in the structure which would be a suitable alternative). They had told me I would have to apply for the role, but I said I understood that I should be offered a suitable alternative without interview prior to colleagues not on mat leave. This was when they changed their tune and said nothing will happen until I go back. I am also really stressed because I will also need to sort childcare. When will my employer have to confirm what my role will be, do they need to give me a period of notice? And how would I 'prove' they've delayed the consultation until my protected period whilst on mat leave, has ended?

Dear EnglishRain,

Thank you for your query.

So as I understand it, you were informed that you were at risk of redundancy, but exercise then this was put on hold, apparently due to Covid 19. However, the process was then continued for all colleagues except those on maternity leave, and that process has been completed with the new structure implemented.

I can understand your concerns in this regard. By not being involved in the process, you have not had the opportunity to be consulted about the changes, or to access and secure the alternative roles. You are correct that during your maternity leave, if you were to be made redundant, you have a right of priority to be offered a suitable alternative vacancy over others who are not on maternity leave. From your post, I understand that the new structure that has been put in place has some new roles (as opposed to simply being a reduction in numbers in already established roles) - you refer to one that you consider to be suitable, and mention that you had been told that you would have to apply for it. That being the case, you should have been placed in this role (unless of course it was also suitable for your colleague also on maternity leave in which case this would not be automatic as she would have the same right of priority as you).

You should have been included in the redundancy consultation process. Sometimes employers (rightly or wrongly) decide to exclude women on maternity leave from redundancy exercises as they expect that by the time they return from maternity leave, the situation may have improved and there will be more likely to be a role available. However, from your description it does not sound like that is the case here, nor does it sound as if you have been offered any reassurances about the future. That being the case, it does look like you have been disadvantaged as a result of being excluded from the redundancy consultation. That would be likely to constitute unlawful discrimination on the grounds of pregnancy.

From your post, I can see that you have already taken steps to try to resolve the matter by speaking to your employer. Was this with your manager, or have you discussed the matter with HR? If not, I would recommend that you ask for a confidential meeting with HR to discuss your concerns about your exclusion from the exercise and this impact upon your legal rights. If you have already spoken with HR, it is possible to escalate your concerns and speak with someone more senior? It would be worth thinking about what you want in terms of an outcome; for example, if the new structure is in place and all roles have been allocated to others as part of the process, it is unlikely that your employer would move someone out of one of the roles. What would a good outcome look like to you?

If you are unable to resolve it by talking to your employer informally, you could raise a formal written grievance. Generally this should be a last resort as it is not always the best way to find constructive solutions – especially if you have already discussed this with the manager and HR involved. However, if all else has failed, it may be the only way to make your employer take your concerns seriously. As with the discussions above, you should be clear on what outcomes you might want from the grievance process.

Finally, you can contact ACAS to register for early conciliation to see whether they can resolve the dispute and finally bring an employment tribunal claim if you cannot resolve matters. Please be aware that there are strict time limits which operate for bringing claims to the employment tribunal. Generally speaking, you have three months less a day from the date of what you are complaining about or the last in the series of things you are complaining about to contact ACAS if you want to go to the employment tribunal afterwards (or think that you might want to do so). I would recommend that you do this sooner rather than later i.e. do not wait until your return from maternity leave.

If you are dismissed in circumstances where you should have been offered a suitable alternative role during the protected period but were not, that dismissal will be automatically unfair. It may also constitute unlawful discrimination. You ask how you would prove that they have delayed the consultation process in order to get round your right of priority to another role. It wouldn’t be for you to prove that was the intention behind the delay. If it is clear that (i) you were excluded from the redundancy exercise; (ii) this was because you were on maternity leave and (iii) this had the effect of removing your legal right to be placed in a suitable alternative vacancy, that would likely be enough to demonstrate less favourable treatment.

I hope this works out for you.

MaternityActionfreeadvice Tue 29-Sep-20 16:53:27

RockieRoadie

I work as a teacher and I'm trying to work out my position when I reach 28 weeks. I understand I'll be classed as clinically vulnerable and the government advises to work at home if possible at that stage. Now I believe it should be possible as a variety of colleagues have done so but under different circumstances and I believe this sets the precedent. One colleague returned from a country late in August and had to quarantine, so they delivered live video lessons via Teams with cover supervisors setting it up in the lesson and monitoring behaviour. Another colleague is self isolating due to a family member having Covid symptoms, that colleague is currently delivering live video lessons on Teams with another member of staff setting it up and monitoring behaviour. Therefore am I right in thinking that this should be the set up as of 28 weeks for me and all my other pregnant colleagues? We are concerned that the School may state they are safe and enough for us and if we did want to stay home then it would trigger our maternity leave which obviously I feel would not be right.

Dear RockieRoadie

Question

You’ve explained that you work as a teacher, and that a colleague who recently needed to quarantine still managed to deliver live video lessons via Teams with cover supervisors setting it up in the lesson and monitoring behaviour. Another colleague who needed to self-isolate was able to use the same arrangement.

You say that when you reach 28 weeks you will be classed as clinically vulnerable and that Government guidance is to work from home if possible. Since your colleagues have managed to work from home, you think it therefore must be possible.

You’ve asked what the position should be when you reach 28 weeks. You are concerned that the School may say that it is safe to work in person, and that if you wanted to stay home it would trigger your maternity leave.

Answer

It is worth referring to the Government guidance available here, which classes all pregnant women (not just those over 28 weeks pregnant) as being “clinically vulnerable” (see Paragraph 7 of the guidance).

The guidance says that you can go to work as long as the workplace is “Covid-secure”.

However, this is not the end of the matter. There are specific protections for pregnant employees. To begin with, the employer must carry out a risk assessment.

Provided that you have told your employer in writing that you are pregnant, the law says that the employer must take reasonable action to avoid “workplace” risks – i.e. risks which are higher in the workplace than you would expect to be exposed to outside of the workplace. COVID-19 is one such risk.

Reasonable action might include altering conditions of work, e.g. by arranging remote working. I think it would be reasonable for your employer to do this, because we know that they have managed to do it for your colleagues.

If those adjustments (either to working conditions, or to working hours) would not avoid the risk, then your employer would have to suspend you on full pay.

You are also protected against discrimination. That means that your employer cannot subject you to unfavourable treatment because you are pregnant. If your employer requires you to attend work in person, then that is likely to be unfavourable treatment. However, it is unlikely to be because you are pregnant – rather, it is because the employer is not taking your pregnancy into account.

I therefore recommend you approach your employer and ask them to carry out a risk assessment (if they have not already done so). A failure to carry out a risk assessment is likely to be discriminatory. That risk assessment should reflect the increased risk to the clinically vulnerable, and in particular to pregnant women. The employer should therefore take reasonable steps to avoid that risk, i.e. by changing your working conditions so that you can work from home. We know that the employer is able to arrange remote working, so this is likely to be a reasonable step to take. In practical terms, you are doing little more than asking your employer to operate in accordance with Government guidance.

If you reasonably believe that there is a “serious and imminent” danger at work, you are able to leave work and will be protected from “detriment” (e.g. reduced pay) and dismissal. I do not recommend doing this without first trying to discuss the matter with your employer.

There is a helpful briefing document prepared by Maternity Action, available here, which provides further information.

MaternityActionfreeadvice Tue 29-Sep-20 16:56:41

Wellibobs12

I am 5 months into my maternity leave. I work in a school and there has been some restructuring due to funding issues. My role is being deleted. There are two of us who do this role but only me on maternity leave. They have 'ring fenced' myself and the other member of staff for 2 roles. One which is very similar to my previous role and a second which is very different. I have registered my interest in the similar role and told my boss that I am not interested in the other. Both roles are full time and previous to going on Mat leave I was working part time.
I would like to know if I should be offered this role or if they are justified in asking me to apply (myself and the other member of staff are both interested in the same role.) I have read advice which suggests that I should be given priority over the other member of staff because I am on Maternity leave. I also want clarity on whether they can call me in to interview when I am on mat leave. I feel strongly that I am at a disadvantage because my head simply isn't in 'work mode' and I would struggle in an interview at present. If it does go to interview and I'm not successful am I then made redundant? The new role is also at a lower grade and lower pay than I was on previously although my salary has been protected for 2 years. I would appreciate any advice on the matter.
Thank you.

Please let me know where I send the details to. I would really like some clarification and I am struggling to get through to the maternityaction line.

Hi Wellibobs12,

I’m sorry to hear that you have been affected by redundancy. As you say, individuals on maternity leave have certain protection in a redundancy situation. They are not protected from selection and can still be made redundant, however, you may have a right of first refusal for the alternative role you mention, which I will talk about more below.

As a quick bit of background, it sounds like both you and your colleague who performs the same role have been provisionally selected for redundancy because that post is disappearing. As such, I’ve assumed it is not, for example, the case where 2 out of 4 people doing the same job are at risk, and that as such there was no scoring process carried out to decide who fell to the bottom of the list (if there has been and some people doing the same or similar role to you have not been placed at risk, you might want to think about whether the scoring was carried out fairly, and for example, they didn’t mark you down for reasons connected with your maternity leave). It could also be relevant to check that your employer was right to single out the role performed by you and your colleague. If others do a similar job to you, then you may want to ask why those others were not included in the “pool” of people at risk.

Assuming there is nothing untoward as explain above about how you have ended up at this point, we now need to look at how to approach the new roles. In particular you asked:

Should I be offered this role or are they justified in asking me to apply (myself and the other member of staff are both interested in the same role.)?

If you are absent on maternity leave at the time of redundancy, you will have a right of first refusal for any “suitable alternative vacancy” if such a role is available, even if you are not the employer’s first choice. The role must be a “suitable alternative vacancy” for this protection to apply. The role which is very different to your current role is unlikely to fall into this category so the question is whether the other available position, which is similar, could be.

To be classed as a “suitable alternative vacancy”, the work involved in the new role must be suitable, appropriate and the location and other terms and conditions not substantially less favourable than in your current job. As the alternative vacancy is at a lower grade, lower pay and full-time as opposed to your current part-time job, it might be argued that it is on substantially less favourable terms and therefore not a “suitable alternative vacancy”. On the other hand, the fact that it is full-time might make it more favourable as your hours would not be cut, albeit on a lower pay. It is therefore not clear whether this available role is a suitable alternative that you should be given first refusal on, or whether it is different enough to be equally open to you and the other member of staff at risk of redundancy to apply for. It is then in your interest to be able to show that the role should legally be classed as a “suitable alternative vacancy”.

Your employer might already have classed it as a “suitable alternative vacancy” and perhaps just wanted to ascertain your interest in the role in the first instance before offering the role to you as a priority. It might be worth you raising this with your employer, explaining that you understand the role is a “suitable alternative vacancy” and checking that this is therefore going to be offered to you, whilst being prepared to explain your reasoning.

Can they call me in to interview when I am on mat leave?

That’s a difficult position to be in. If the role is classed as a “suitable alternative vacancy” then you are not required to go through an application or interview process where the other member of staff is not protected and you have the right of first refusal. However, if the role is not a suitable alternative and is therefore open for application then you may need to apply in the usual way. Legally there is no concrete answer on asking you back in during maternity leave for this purpose. In practice, if an interview process is required, your employer would have to give you sufficient notice and should ask you to use a Keeping In Touch (KIT) day and pay you for it (assuming the other candidate is attending on work time). If you have used up your 10 KIT days, then that could cause a problem because technically working on an 11th day would automatically terminate your maternity leave. You should also explain that you will be disadvantaged as a result of your maternity leave and no longer being in work mode. Ideally the employer would then factor that in, and certainly if they don’t you could argue that they discriminated against you on grounds of sex/maternity leave. If you are breastfeeding you may need to flag that too in case it impacts on you attending interview. It would be discriminatory if they took into account the fact that you are still on maternity leave as a reason not to offer you the role.

If I go to interview and I’m not successful am I then made redundant?

Yes, if you do interview for the role (due to it not being a suitable alternative) and are not successful then you could be made redundant.

The new role is also at a lower grade and lower pay than I was on previously although my salary has been protected for 2 years.

You would still retain your continuity of employment. Otherwise, the new role would essentially be a new contract and so the terms and conditions are allowed to differ. Be mindful that, in order for the role to be classed as a “suitable alternative vacancy” and for you to therefore be automatically offered the role, you may find yourself arguing that the terms are not substantially different.

While I have flagged some discrimination concerns, I suggest raising these issues positively and working with your employer. You are keen to be offered the new job and so want to encourage your employer to offer you it either automatically or after interview. If they are not amenable to these suggestion you can then consider whether it is necessary to be more forceful about the discrimination angle/appeal against their decisions/raise a grievance (formally or informally) or pursue your rights in the tribunal. I recommend trying to get this resolved amicably. A word on timescales though: if your employment does end by reason of redundancy, you have 3 months from the termination date to start a tribunal claim process via ACAS.

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