MNHQ here: post your pregnancy & maternity work questions here for FREE legal advice from Maternity Action

[NicolaDMumsnet]

Welcome to the third clinic of the year running from 6th to 9th November!

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

Whether you have a question about maternity leave, your request for flex work, your rights as a pregnant worker, or think you may be discriminated against by your employer because of being a parent, this is the place for you.

The clinic takes the form of a Q&A on this thread and will run for a week from Monday 6th to Thursday 9th November. The Maternity Action team will be answering questions throughout the week and will do their best to provide all answers to questions by Friday afternoon. More information on where to go for more help once the clinic has ended is here. All past clinics are here.

How it works:

1. If you have a question about your rights at work during pregnancy, maternity or parental leave, post it here below before the 9th November. 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 private message to disclose information to the volunteers that you’d rather not make public.
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. 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.

Thank you for your speedy reply. That is all extremely helpful!

Hi!

Advice needed re Maternity Allowance.
I have been employed for 5 years and off sick with work related stress since February 2023. I have been received SSP from work up until end August 2023, and was advised to get SSP from the government thereafter but I did not do this.
My work situation is not improving, despite following grievance procedures so I am about to resign with immediate affect.
I am pregnant and due in May 2024, so should qualify for the maternity allowance (employed for 26 weeks of the 66 weeks before due date), however I am unsure how this works if you have been long term sick, is this still counted as employed? and since end August I have not been receiving any SSP, but still been employed. My termination date from my employment would be 10th November.
My employer doesn't know I am pregnant, and I am also wondering wether not resigning would be a better option in order to receive Maternity Pay, rather than Maternity Allowance, but I really want to cut ties with work.
Please help! Thanks

Hi I have been on maternity for the full year I am allowed and then used my annual leave for the year I was off equating to 24.5 days, I work part time. I am currently on my annual leave and wanting to know if I would qualify for any sick pay if I was not to go back after my annual leave days end?

@MaternityAction thank you very much, this information is helpful.

Dear @MariaVT65

Thank you for your enquiry. I am sorry to hear you have received this news and received it at this early point in your maternity leave.

In answer to your question, there is a rule (regulation 12A(4), MPL Regulations) that says that an employer may make "reasonable contact" from time to time during an employee's maternity leave. There is, however, no rule or obligation on you to keep in contact with your employer while you are on maternity leave.

Employers usually use their right to make reasonable contact to discuss arrangements for the employee's return to work or to keep the employee informed of important developments at work, including (as in your case) notification that they may be at risk of redundancy. That said, your employer’s timing is extremely poor and not, I would suggest, in line with acceptable practice. It is also very insensitive of your employer not to consider the fact that you are unlikely to be able to engage in the consultation process in any meaningful way while you are in the early stages of your maternity leave, particularly when you are unwell in your pregnancy (which presumably they knew about) and due to give birth in 2 weeks.

My recommendation would be to inform your employer that you find their timing extremely poor and insensitive and that obviously you are not going to be able to maintain contact with them, let alone engage meaningfully in the consultation process, for the foreseeable future for the reasons you mention below. I would suggest that you then go on to ask your employer to postpone the consultation process until after your maternity leave has ended or, if this is not possible, at least until after you have had the baby, are fully recovered and routines established.

It is worth mentioning the special protection that you are afforded if you are put at risk of redundancy while you are on maternity leave. Your employer is under a legal duty to offer you any suitable alternative jobs (if any are available) in priority over other employees. It is a rare example of positive discrimination and requires employers to protect those on maternity or parental leave who may have just given birth or may have been out of the workplace for a long time and in both situations would be significantly disadvantaged in having to compete for roles.

It is also unlawful discrimination for an employer to select employees for redundancy because they are absent on maternity leave or subject them to any other unfavourable treatment because they are on maternity leave, as I am sure you will be aware.

For the time being, I recommend you take the course of action outlined above and whilst it may be advisable to engage with your employer at some point during your maternity leave regarding the redundancy situation (if they are unwilling to postpone the consultation process until you return to work) you are certainly not required to at this stage.

I hope this information helps.

Dear @LHLW

It is unlawful for your employer to treat you unfavourably because of your pregnancy or on maternity leave. As you are on maternity leave you are in what is called a “protective period”. This covers the period from when your pregnancy begun and ends when your maternity leave concludes (excluding any annual leave you take before returning from annual leave). During this period, you can claim pregnancy and maternity discrimination if you are treated unfavourably by your employer and your pregnancy/maternity leave does not have to be the only or even the main reason for your unfavourable treatment, but it must be a 'material influence' on your employer’s conscious or subconscious decision-making.

A benefit of being in the protected period is that a comparator is not required. This means that the test is whether you have been treated ‘unfavourably’, rather than ‘less favourably’ as is required for all other protected characteristics.

Advertising your role

Should it be ambiguous, you may first be best asking your employer whether the advertised role is in fact for your position. You also want to know why it covers 12 months considering your return date in 4 months time.

If the ad specifies that it is for maternity leave cover it could enable your employer to give notice earlier to terminate the contract if you return to work earlier or your employer may have decided that they are unable to recruit to a role for such a short period and will maintain both roles for a period. In any event I suggest getting some clarity from your employer.
If you are returning during your ordinary maternity leave (first 26 weeks), you have the right to return to the same role on the same terms of employment and conditions as if you hadn’t been absent. If your employer does not allow you to return to the same job you could have a claim for unfair dismissal, automatic unfair dismissal and/or maternity discrimination.

If you are returning during your additional maternity leave (more than 26 weeks), you have the right to return to your role unless your employer can show it is not reasonably practicable for you to return to the same job, although you should be offered a suitable job on similar terms and conditions. For example, if your role still exists and this has been given to someone else hired in your role, this would amount to discrimination and unfair dismissal.

Treatment while pregnant
In respect of your employer’s treatment of you while pregnant (still during your protected period), such as excluding you, your claim would be that this resulted in you suffering a disadvantage/detriment. However, whether you are in time to bring a claim for these earlier acts of discrimination is set out below (Next steps).

Flexible working request
You mentioned that you put in a flexible working request to work on a part-time basis. Any claim you may have against your employer in their dealing with your flexible working request depends on whether this was a statutory request or an informal one.

Presuming that you made a statutory flexible working request, you should receive or should have received a response to your request within 3 months. The tribunal would also look at whether your employer dealt with your request in a reasonable manner, such as inviting you to a meeting to discuss your request (why you want part-time hours, how any problems your request, if granted, could be overcome, and other options should your request not be possible e.g. other working patterns), and gave a valid reason (of which there are 8) for refusing your request. If your employer has failed to deal with your request in this matter, you could bring a claim for breach of the statutory flexible working regime (although a successful claim of this type would include only limited compensation of up to 8 weeks' pay capped at the statutory amount) and/or indirect sex discrimination. You should include any complaints you have in respect of how your employer has dealt with your request in any grievance you may raise.

Unfortunately, the right to request flexible work is weak and is a right to 'ask'. Your employer may be able to justify a refusal for one or more of 8 legal business reasons. You have mentioned that you stated in the request that you would consider other roles. Your employer should be considering how you can fulfil your existing role in a way that meets your childcare needs. If you think your employer is justified in refusing your request or it would genuinely be difficult to do your job in the way you are asking, you can ask your employer to consider you for other roles, but they do not have an obligation to provide other work. Your strongest legal right on return from maternity leave is to return to the same job on the days/hours that you were working immediately prior to your maternity leave.

There is more information on flexible work requests on the Maternity Action website here: https://maternityaction.org.uk/advice/child-friendly-working-hours/

Next steps

Time limits

The time limit for starting a discrimination claim is three months, less than one day, from the act or last in a series of acts of discrimination. Whether you can rely on previous instances of discrimination, prior to your maternity leave, depends on whether you can show a continuous course of conduct. A tribunal can sometimes accept a claim out of time if you can show that it is 'just and equitable', however, you cannot rely on an extension of the time limit, and I recommend making a claim on time wherever possible; otherwise, your claim may fail.

Your time limit to bring a claim for their response to your statutory flexible working request is three months, less one day, from when your employer made their final decision. If your employer didn’t make a decision within 3 months of your request, your limitation is 3 months, less one day, from their deadline to respond to your request. However, if you are continuing to negotiate a part-time return to work with your employer, you may want to continue that process rather than start a claim against your employer at this stage.

Unfortunately, there are limited options for free representation for employment tribunal claims, and I suggest seeking further advice on the merits of any claims and likely compensation before embarking on a claim.

Bringing a grievance/claim

If you want to take further action, you are expected to make reasonable attempts to try to resolve the issue with your employer first. Although it is advisable to try to resolve matters informally initially, it is apparent that you have already tried this to no avail. Whilst, raising your concerns in writing will set the groundwork for any future claim you may bring, it is also important to bring a grievance to prevent any potential compensation from being reduced. This includes appealing the grievance outcome should it not resolve your concerns, but being mindful of the time limit above.

You should also be aware that bringing a claim is likely to damage your employment relationship as it makes employers defensive, often entrenching the issue further, and does not usually end well. Therefore, you want to seriously consider whether to bring a grievance or whether there is scope for further discussions to resolve things amicably. If you do have any further discussions with your employer, be sure to take a note either at the time or as soon as possible thereafter.

If you do want to submit a claim to the employment tribunal, you will need to first go through ACAS early conciliation before the expiry of your time limit: https://www.acas.org.uk/early-conciliation ACAS may be able to resolve the issues with your employer, for example, by helping you to negotiate an exit settlement with your employer, which would avoid the risks and uncertainty of employment tribunal claims.

I hope this helps.

Dear @sl86849

I am sorry to hear about the difficult time you are having at work. You will be eligible for Statutory Maternity Pay (SMP) if you meet all of the following:

1. You have been employed by the same employer for at least 26 weeks by the 15th week before your expected week of childbirth (EWC). You are still employed during paid and unpaid sick leave and annual leave. However, depending on your due date in May 2024, you would need to remain employed until at least January or February to reach the 15th week before your EWC. And,

1. You earned at least £123 per week in the 8 weeks (if you are paid weekly) or 2 months (if you are paid monthly) immediately before the end of the 15th week before your EWC. If you remain on unpaid sick leave during that period, which (depending on your due date) is likely to be November/December or December/January, you will not have sufficiently high earnings to qualify for SMP.

If your employer offers enhanced occupational maternity pay you should check their maternity policy or your contract to see whether you would qualify.

If you are unable to qualify for SMP, you will need to claim Maternity Allowance. You will be able to count weeks of employment in which you were on paid and unpaid sick leave and annual leave to qualify for Maternity Allowance. You can also count weeks during your notice period, even if that is unpaid sick leave.

The Maternity Allowance claim form is available online here: https://www.gov.uk/government/publications/maternity-allowance-claim-form  

You can also find a table to work out your 66-week test period. If your baby is due at the end of May 2024, the latest your 66-week test period is likely to start is 19/2/2023. You are therefore able to complete the 26 weeks of employment between 19/2/2023 and the end of your employment in November 2023.

You do not need to be currently employed to claim Maternity Allowance.

You will also need to provide proof of earnings over a 13-week or 4-month period if you are paid monthly. In order to maximise your Maternity Allowance payments, you should send 13 weeks' or 4 months' payslips within your test period with your highest earnings. DWP will use these payslips to work out your average earnings.

Maternity Allowance is £172.48 per week or 90% of your average earnings if lower.

If you have been receiving SSP from February to August 2023, this will count as earnings, however, this may be lower than your normal earnings. You are entitled to be paid for any accrued outstanding annual leave on resignation, so if you receive any holiday pay in your final payslip, it may help boost your average earnings by sending that payslip (and three others) with your claim form.

Ordinarily, you can choose when your MA payments start, however, if you are unemployed, or become unemployed, in the 11 weeks before your baby is due, Maternity Allowance will start automatically from that date.

I hope that helps.

Dear @Ttc1986

You can take sick leave after maternity leave and/or annual leave. You will need to follow your employer's normal sickness absence reporting requirements when your annual leave ends. You can self-certify sickness for the first week and thereafter you will need to provide a 'fit note' from your GP.

You will be able to qualify for Statutory Sick Pay if you meet the normal qualifying conditions. This means that you will need to have average weekly earnings of at least £123 per week in the 8 weeks prior to your period of sick leave. You can find a Government calculator here: https://www.gov.uk/calculate-statutory-sick-pay

You will need to check your employer's sickness policy or your contract to see if you are eligible for full sick pay from your employer.

I hope that helps.

Thank you, as I have been on 24.5 days
annual leave (full pay) (I work 3 days a week) would this qualify as being 8 weeks?