Page 2 | MNHQ here: 7th-11th June FREE legal advice from Maternity Action about issues at work related to pregnancy and parenthood

(30 Posts)

MNHQ have commented on this thread.

JuliaMumsnet (MNHQ) Thu 03-Jun-21 16:38:04

Are you confused about your rights during maternity leave? Have you come back to find you're in a completely different role? Has your employer told you it's not possible to take parental leave? Do you think you are being treated differently since becoming a parent? Mumsnet and Maternity Action have got you!

We are teaming up again to provide an online legal clinic - where anyone can come and ask a question and get free advice on pregnancy, maternity and parental rights at work from qualified employment solicitors and barristers who are members of the Employment Law Association. We're really glad to be able to provide this resource for all women and parents. We see on the forums that this is a huge issue, especially during covid.

There are no stupid questions, so go ahead and please spread this around to friends and family!

Once you ask your question, the specialist solicitors and barristers will take necessary additional detail via private messaging before posting up answers and advice (this information will never be shared, will be deleted, and is only to make sure sure that there is no conflict of interest).

HOW IT WORKS
If you have a question about how you are treated and what your rights are at work during pregnancy, maternity or parental leave please post it below!

Some questions Mumsnet users asked last time:
I was made redundant in July whilst on maternity leave, two weeks after my mat leave started which was four days after my baby was born. I’ve found that you only have 3 months to do anything about this, is this true?

I've just returned from maternity and my role has changed, I've got fewer responsibilities than before my maternity. I don't have an up to date contract either. Do I have any rights or do I have to accept my reduced role?

Please give as much information as possible but remember that anyone can see this page so don’t name your employer (you send more info by private message). Next step is to 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. They cannot respond until you do this.

The clinic will run from Monday 7th to Friday 11th June. The advisors will do their best to answer questions within the week - but some may take a bit longer.

Terms and conditions – 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: |
MaternityActionfreeadvice Wed 16-Jun-21 09:48:38

JTA01

My husband is entitled to 6 months fully paid paternity leave which we would like him to take. However, I do not want to give up any of my leave. I am only entitled to statutory maternity pay and would happily give up 6 months of this so my husband can take the time off but I would like to still have 12 months off work. Is this possible?

Dear JTA01

Thank you for your query. I understand you want to know whether or not you will ‘lose’ any of your 12 months’ maternity leave entitlement in the event that your partner takes 6 months of paid paternity leave under his employer’s enhanced scheme.

I will firstly set out some basic information about the statutory framework for taking leave after the birth of a child. Paid statutory paternity leave is ordinarily for a period of 2 weeks. If a partner then wants to share time off with the mother this would usually be by way of shared parental leave (SPL). Couples can share up to 50 weeks of leave and up to 37 weeks of statutory SPL pay between them (minus any pay/time off the mother has already taken by way of maternity leave). Note that the mother must take a minimum of 2 weeks of maternity leave for health and safety reasons (hence there being 50 rather than 52 weeks of SPL available to share between the couple). The 50 weeks can be taken in blocks separated by periods of work, or all in one go. The couple can be off work on SPL simultaneously or choose to alternate when they are off on SPL. Any period of time one partner takes off under the SPL (or maternity leave) scheme reduces the couple’s overall entitlement of 50 weeks of SPL off.

This is the basic statutory framework and what you will need to do is explore how your husband’s company’s enhanced paternity leave/pay scheme follows/interplays with the statutory framework for SPL. Your partner will need to check his eligibility for his employer’s enhanced paternity scheme and whether it is contingent on, for example, your maternity leave having ended and/or you ‘sharing’ any of your maternity leave with him (by way of e.g. shared parental leave). In order to do this I suggest he requests a copy of his employer’s family friendly policies (such as paternity and SPL) or else locates them on the staff intranet or in the staff handbook, and reads through them, particularly the section on eligibility. He should then raise a query with his manager and/or the HR team at his workplace (if there is one) to check his understanding of the policy is correct. Unfortunately the SPL scheme did not create any new, independent rights for paid time off for fathers/partners, it only allowed mothers to transfer some of their leave/pay to their partner.

If the company policy allows your partner to be on enhanced paternity leave without it ‘eating’ into your own maternity/SPL entitlement, then great. Please note, however, if you end up in a position where you are both taking time off to care for your child, you should ensure that any enhanced paternity pay that your partner is receiving does not incorporate any Statutory Shared Parental Pay, if you yourself are already claiming SMP (or vice versa). This would lead to double recovery of your entitlement as a couple to some form of statutory shared parental or maternity pay. It would be worth you both raising this issue with your respective workplaces so that they can ask payroll to calculate the figures correctly, so that you don’t inadvertently get into trouble (e.g. with HMRC) for claiming the statutory pay twice.

If your partner’s enhanced paternity/parental leave policy does require you to give up some of your maternity leave/SPL in order for him to be eligible for the scheme, you will need to consider if you are willing to do this. You do not have a legal right to extend your maternity leave/SPL beyond the maximum number of weeks that the statutory framework allows, but you can speak to your workplace about different options for extending your time off before you return to work e.g. taking a period of unpaid leave, or using accrued annual leave. Note that you will continue to accrue annual leave during any period of maternity or SPL you personally take (at the same rate as you would if you were in work), and many parents choose to add this annual leave onto the end of their maternity leave/SPL as extra time off, but on full pay.

Another option to explore is parental leave. Each parent (provided they have worked for their employer for at least 1 year) has the statutory right to 18 weeks of unpaid time off work to look after their child, which can be taken any time up to their 18th birthday. This time off will be unpaid unless your company policy says otherwise.

If you take parental leave, it should be in blocks of a week at a time, and a maximum of 4 weeks in any particular year. If you want to take any parental leave you must ask your employer 21 days in advance of the date you want the time off to start. Your employer can postpone your parental leave request if it is going to be disruptive to work (e.g. too many other staff on leave at the same time that a large project deadline is due), but only by up to 6 months after the date you originally asked for. If your employer does decide to postpone your parental leave, they must write to you within 7 days of your request to tell you why the leave is being postponed and to offer other suitable dates within the 6 month period following the date you originally wanted the leave to start on.

If you decide to request a period of parental leave to extend your time off after the birth of your child, it is advisable to think about how much you would like to take off at this time (a maximum of 4 weeks per year) and whether you might want to retain any of your entitlement for future use e.g. to look after your child during school settles or school holidays, or when they are off school sick (although remember, each parent can take up to 18 weeks of parental leave for each child, so that is 36 weeks potentially available to you as a couple).

The ACAS and Maternity Action websites have specific sections on family-friendly leave if you would like to read around this topic in more detail:

www.acas.org.uk/maternity-paternity-and-adoption-leave-and-pay

maternityaction.org.uk/advice/shared-parental-leave-and-pay/

MaternityActionfreeadvice Wed 16-Jun-21 09:51:16

JoJoPins

I have been working on a huge opportunity at work for around 15 months. Its in the final stages of being agreed, expecting to come to fruition in September. According to our set incentive plan, this particular opportunity is estimated to be worth a £10k bonus alone.
I have been told that because I will be on maternity leave when this opportunity closes, I am not entitled to any form of bonuses from our incentive plan. This is in an email from HR but not stated in the current handbook.
However, a new handbook has been sent out recently (after I questioned this) where this IS stated and I have refused to sign it for that very reason. I have now apparently been "written up" for not signing and agreeing to this new policy.
Does this sound fair to you?
I started A/L on the 7th June for 2 weeks then my maternity kicks in, unless I have the baby beforehand.
Thanks!

Hello JoJoPins

Thank you for submitting your query. I'm sorry to hear that you are in this situation, particularly given you have spent a lot of time and effort on this project.

· First of all, we're off to a good start as you were notified via email and you will have a paper trail of when everything happened. You should keep that saved, but be careful not to forward any confidential information to a home computer in case that falls foul of any conduct or IT rules. I would also suggest you start saving copies of the relevant policy documents including current and previous versions of handbooks etc just in case they disappear from the system down the line.

· Secondly, you are right not to sign the new policy as this keeps you in the best position going forward as you can potentially argue that the original scheme is part of your contract. While they may put pressure on you to accept it, I do not recommend doing so voluntarily without first taking legal advice on the details of what you are being asked to agree to. Employers can use quite strong tactics to force through a change, but normally they need to follow a fair procedure, and give you sufficient notice. Importantly, the change may not even be enforceable if it is discriminatory.

· From what you've told us so far, this does seem potentially unfair and could be a breach of contract as it raises questions of equality and discrimination (the relevant protected characteristics here are both sex and pregnancy/maternity).

· I agree that your employer "writing you up" for not signing this does seem like an unfair disciplinary sanction (if that is what they have done) so you should explain your view to them so that there is a record in case it is raised again in future. If you have been given a formal warning then you should also have been given a right of appeal which you should exercise.

In terms of the legal position, there are two things that are relevant. The first is what your contract says. That is why it is important not to sign up to something which will make you worse off as explained above. Contracts are able to offer you better rights than the statutory minimum, but the statutory rules take over if the contract doesn't meet that standard.

The second point is therefore whether the background legal position allows your work to make this change at all. The rule is a bit complex here, and the answer is unfortunately, that it depends. While you are on maternity leave, you remain entitled to be paid a bonus in respect of the time before you went on maternity leave; the two weeks of compulsory maternity leave immediately post-birth; and the period after you return to work. If the bonus relates to those periods then they cannot refuse to pay it just because you are off on the payment date. However, the rules do allow your employer to reduce the bonus so that you are not earning it in respect of the period you were otherwise off on maternity leave. From what you have described, it seems like a lot of the work was done before your maternity leave is due to start, but that the right to the bonus may crystallise when you are off. As such, they might be able to deny you the bonus but it really will depend on the wording of the scheme (and whether you can hold firm that the old scheme is the one that applies to you).

As for your next steps, I would still suggest you remain firm in not signing the new policy yet as this keeps your position clear – the change to the policy happened after you queried the reasoning behind not be eligible for the bonus. You could also discuss with them whether the bonus could be pro-rata'd so that you get some but not all of it to reflect your time off on maternity leave, but also your valuable contribution to the project. That would seem like a fair position. Finally, this is not something that would make sense for a smaller sum of money, but you could consider using the shared parental leave regime to allow you to dip back into work in September if you know when the bonus is likely to crystallise, to ensure you are at work when this happens. You would need to provide notice and check your eligibility for shared parental leave (and that includes considering whether your partner's earnings meet the threshold). In practice, that is a complex approach that may not suit, but in raising that option with your HR team you may be able to demonstrate to them that it would be in everyone's interests to reach an agreement without anyone jumping through hoops. I suggest trying to explore informal routes of resolving this before embarking on any formal grievance, as that can create additional stress and unfortunately in some cases can make it less likely that your employer will try and find a solution. The grievance option is there though if you find you aren't making progress otherwise.

Finally, it does seem like there is enough money involved here to take some specific legal advice as the wording of the documents will be quite important.

I hope this helps in answering your query

MaternityActionfreeadvice Wed 16-Jun-21 09:54:57

Jemma5321

Hi,
I’m due to give birth in early July. I have 35 days holiday plus bank holidays(April to March) I usually only have 25 But carried over 10days due to covid. My employer has said that I cannot take it over to the next holiday year and must use it this holiday period, is this right? Would it be worth splitting up my maternity leave with holiday then parental leave?

Thank you

Dear Jemma5321

Thanks for your query. Holiday must usually be taken in the leave year in which it falls, subject to any carry over provisions in your contract, and must be booked with your employer using your normal procedures.

If you are not able to take your statutory minimum of 28 days’ paid holiday within the holiday year (for example, because your maternity leave overlaps your holiday year) you must be allowed to carry it forward and take it at another time: www.gov.uk/holiday-entitlement-rights/calculate-leave-entitlement. Any additional contractual entitlement to holiday pay (over and above the 28 day legal minimum) must be taken in line with your contract.

From 2020 workers are allowed to carry forward up to 4 weeks annual leave if they are unable to take it because of coronavirus for up to two years. This is to enable NHS workers who were required to work, for instance, to carry holiday forward for a longer period or workers who were unable to take holiday because of periods of self-isolation or other reasons related to coronavirus.

If this provision doesn't help you and you're unable to take this year's leave before your maternity leave starts or to carry it forward under your contract, you could end your maternity leave earlier as suggested so that you have a period 'back at work' during which you take annual leave and then take a period of shared parental leave. You should check the notice and eligibility conditions carefully for shared parental leave (your partner will need to meet the employment and earnings condition even if your partner is not taking any shared parental leave). You should also bear in mind that once your maternity leave has ended you will not be protected under maternity discrimination provisions although you do have some protection in relation to returning to work from shared parental leave.

This ACAS page on taking holiday may be helpful: www.acas.org.uk/checking-holiday-entitlement/asking-for-and-taking-holiday
You can also find more detailed information about giving notice for shared parental leave on the Maternity Action website here: maternityaction.org.uk/advice/shared-parental-leave-and-pay/

I hope that helps.

MaternityActionfreeadvice Wed 16-Jun-21 10:00:05

madamovaries

Thank you so much for doing this; am really impressed with both MN and Maternity Action.

Unfortunately, like a lot of women I think I have been poorly treated while on mat leave, but I should add that I am pretty lucky generally with my job.

My department was incredibly male-skewed when I joined the company three years ago, though it has suddenly got a lot better since we have new bosses of the company. But no one had taken maternity leave in years - I mean, I think we're talking about a decade, possibly more - and I think this is why the company has been hopeless.

The way I was treated while pregnant wasn't great - eg I was made to work on my phone while at one of my prenatal scans (I did all the rest of the scans on my days off), for example, and I had a bunch of male colleagues using my pregnancy to push me off work that was mine and prevent me from being fairly credited for it.

I still managed to do a good job, and I landed two massive contracts for the company. I also got a new role last June, but didn't ask for a pay rise as the company knew I was pregnant. I went on mat leave in January.

I am ineligible for a bonus for this financial year, despite working most of it, because I am viewed as not there. But I decided to be brave and ask for a pay rise - to be honest, I think I would have had one already were I male (male colleagues junior to me earn more; one also got a pay rise for moving between equivalent roles without proving himself in any way).

I have since been told - because I won't have an annual appraisal due to being on mat leave - that I am also ineligible to be considered for a pay rise.

I know most people wouldn't ask for a pay rise while on mat leave, but I am on statutory mat pay and I can't even come close to covering my mortgage. And I am going to struggle if I go back to work to pay for childcare on my current salary.

I have been headhunted for another job, but I like the work I do at the current company more. Is it normal practice that you can't be considered for a pay rise while on mat leave?

Thank you very much

Dear madamovaries

I'm very sorry to hear about the way you've been treated.

You are entitled to be considered for a pay rise during maternity leave. If a pay rise is awarded to all staff and it takes effect before the end of your maternity leave you are entitled to have your SMP recalculated so that any increase in reflected in your average weekly earnings for SMP purposes and any other salary-related benefits.

You are not entitled to 'remuneration' during maternity leave so a discretionary pay rise will take effect from your return to work. Unfavourable treatment because of pregnancy and/or your absence on maternity leave may be pregnancy/maternity discrimination and a refusal to consider a pay rise if you are absent on maternity leave may be indirect sex discrimination unless your employer can show that it can be objectively justified.

You have also mentioned that your employer has refused to consider you for a bonus because of your absence on maternity leave. The situation in relation to bonuses is not so clear cut as it depends on the type of bonus and any terms in your contract. Broadly, your employer does not have to pay a non-contractual benefit relating to pay, such as a discretionary bonus, during maternity leave. However, you are entitled to a non-contractual bonus for the two week compulsory maternity leave period and for the portion of a bonus that related to any period when you were not on maternity leave.

You have a time limit of three months (less one day) from the date of the act or series of acts you are complaining about for starting a claim in an employment tribunal and you would need to contact ACAS on 0300 123 1100 within the time limit if you want to take action. However, as you have indicated that you want to stay in this role and you want to maintain a good working relationship with your employer I would suggest approaching your employer first to enter into discussions about your pay and bonus and setting out your achievements and record with the company. If your employer maintains their blanket policy of not considering a pay rise for women on maternity leave and if you think they have wrongly refused a pro-rated bonus I would recommend taking further legal advice if you want to pursue it.

I hope that helps and wish you luck!

RowanMumsnet (MNHQ) Wed 16-Jun-21 10:05:45

That's all for this clinic - many thanks as ever to all the lawyers who took part and to Maternity Action for organising it all. We hope the advice here has been useful flowers

We're going to close the thread now so that new posters don't get confused and think we're still taking queries - but we will be running another one in a few months, so please keep your eyes peeled.

Thanks
MNHQ

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