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

[RhiannonEMumsnet]

Free online advice clinic Sunday 29th June to Wednesday 2nd July.

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 and pay, 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 from Sunday 29th June to Wednesday 2nd July. The Maternity Action team will do their best to provide all answers during that time and at the latest by Friday 4th July. More information on where to go for more help once the clinic has ended is here. All past clinics are here.

How it works:

If you have a question about your rights at work during pregnancy, maternity or parental leave, post it below before 5pm on Wednesday 2nd July. 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.

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.

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 click here

Dear MyDearBee

Thank you for your query. I am sorry to hear that you had to resign following the refusal of your flexible work request. On the whole, it is a weak right and is only a 'right to ask'. An employer can refuse a request but only if they can justify refusing it on certain work-related grounds. The legal reasons an employer can give for refusing are set out in the ACAS guidance here: https://www.acas.org.uk/statutory-flexible-working-requests/considering-a-request

I understand that you did not pursue an appeal and in most cases you would be best advised to do this if you want to challenge the refusal. If you think that your employer was not justified in refusing your request or did not make reasonable attempts to hire someone else (I assume for a jobshare partner or other part-time worker), I suggest raising this with your employer especially if it has forced you to resign and to have to repay your OMP.

In relation to repayment of your occupational maternity pay (OMP), in most cases your employer will be able to rely on the terms and conditions set out in their policy. You are entitled to your SMP, including the first 6 weeks at 90% of your average earnings but any other enhanced maternity pay will be repayable as stated in the policy and you should check the terms carefully.

Given the concerns you have raised about the lack of clarity around payment of the OMP (both in the notice you gave and your payslips) and as the policy states that you 'may be asked to repay', I suggest writing to your employer, setting out what happened, the lack of clarity about their payment of OMP, and ask if they would agree to waive all or part of the repayment as they have not allowed you to return to work on reduced hours.

Please be aware that your contract may allow your employer to deduct any sums owed against any wages or holiday pay owing to you. If they are not willing to waive the full repayment, you could ask if they would agree to deduct the 6 weeks' holiday pay and to waive the remaining sum owed. You are also entitled to ask to make any repayment in reasonable and affordable amounts.

I hope you are able to resolve it.

Dear roxkul1411

Thank you for your query. I am sorry to hear that you have had such a difficult time.

There are two stages to bringing a claim to the employment tribunal:

Telling ACAS that you intend to make a claim via the “early conciliation” process. This is a mandatory step for a discrimination claim and the employment tribunal will generally not accept a claim without the certificate issued by ACAS confirming that that has taken place.
Once you have the certificate from ACAS, completing the form ET1 and lodging this with the employment tribunal.

There are strict time limits that apply in respect of employment tribunal claims. For a claim of pregnancy/maternity discrimination, the time limit for presenting the claim to the employment tribunal is normally three months starting with the date of the act/treatment or last in a series of acts. This time limit will generally be extended to take account of the period of early conciliation as the clock is effectively stopped during this time (this is an overly simplistic description as the rules for this are quite complex - but this is the general principle).

However, acts occurring more than three months before the claim is brought may still form the basis of a claim if they can be shown to be part of a continuing course of conduct by your employer – and if the last act in this course of conduct was within the last three months (see more on this below).

It sounds from your email that you may have missed the time limits for at least one of the required steps above (and potentially both). That being the case, the key thing is to act quickly and without further delay. In deciding whether to allow a claim to be accepted late, the Tribunal will generally consider not only the reason for the delay but also how quickly you acted once whatever impediment that prevented you from bring the claim was no longer present.

When you say you contacted ACAS in December 2024, was that for advice, or did you contact them and start the early conciliation process? If you did the latter (and therefore have your early conciliation certificate), I would recommend that you complete and submit the form ET1 with the details of your claim as soon as possible. This should include not only the details of all the acts you consider to be discriminatory, but also a clear and detailed explanation for the reason why the claim was not presented within the required time limits.

If you do not have an early conciliation certificate, you will need to obtain this prior to raising your claim with the employment tribunal. I would recommend that you contact ACAS as a matter of urgency (details here: Notify Acas about making a claim to an employment tribunal | Tell Acas). It is not compulsory to actually conciliate with your employer as part of that process. In the circumstances, I would suggest asking the conciliator to issue the certificate as quickly as you can to enable you to present your claim. If you explain your position to the ACAS conciliator, they will be able to help you with this. I would recommend completing the online form but also calling to speak to ACAS so that you can explain the urgency to them.

When can the time limits be extended?
As you note, the Tribunal does have discretion to accept a claim late if it considers it is “just and equitable” to do so. This is a very broad discretion, and the Tribunal can take into account any factor it considers to be relevant when making this assessment. However, exercising discretion to allow a claim in late will generally be the exception, rather than the rule. The onus will essentially be on you to demonstrate that there was a good reason for the delay, supported by evidence if possible. I note from your post that at the time you were heavily pregnant and simply couldn’t cope with following it through and have since been caring for your newborn full-time. Given the extent of the Tribunal’s discretion in this decision, it is difficult to be prescriptive about what will/will not be accepted by the Tribunal as a good reason. However, you have nothing to lose by submitting your claim, explaining your circumstances (including what steps you did take) and asking that this is accepted late.

Constructive dismissal
I note from your post that you do not intend to return to work and are planning to resign. I also note that you are considering a claim for constructive dismissal in respect of this. I would suggest taking some legal advice if you can prior to resigning so that you understand your options. Constructive dismissal claims are difficult claims to bring so there is no guarantee of a successful outcome. You are usually expected to resign in response to the breach of contract or discriminatory act and may be considered to have accepted the breach given the time that has passed.

I would note that the time limit for bringing a claim for constructive dismissal is as set out above – three months from your last date of employment. To flag, the Tribunal has very limited discretion to accept a claim for constructive dismissal late so it is important that the deadline is met. If – as your post suggests – you are resigning because of your employer’s treatment of you which you believe to be discriminatory, it is possible that you would be able to argue that their treatment of you throughout your pregnancy/maternity leave was a continuing course of conduct – therefore bringing earlier acts within the time limits. However, I would not rely on this for now and would still suggest that you submit a claim relating to the current issues as soon as you can. If your claim is allowed to proceed and you end up bringing another for constructive dismissal, you would likely be able to join them together.

Support
Unfortunately there are limited options for free legal advice and representation for employment tribunal claims. You may be able to get free legal advice and representation from your union (if you are a member). You may be eligible for legal aid if you are bringing a discrimination claim. This is means-tested. You can find a legal aid provider here: https://www.gov.uk/civil-legal-advice or in Scotland: https://www.mygov.scot/legal-aid
You may also be able to get help from a local Law Centre: you can find the Law Centres Network website here: https://www.lawcentres.org.uk/
You should also check whether you have any Legal Expenses cover included on any home or car insurance policies you hold as this may cover free legal advice and representation for employment claims.
I wish you all the best.

Dear Forest1234

Thank you for your enquiry.

You are correct that you are entitled to return to the same role on the same terms and conditions. If you are returning after taking more than 6 months' maternity leave and it is not reasonably practicable for you to return to the same role, your employer can offer you a suitable alternative role on not less favourable terms and conditions. If there has been a restructure your employer is likely to be able to argue that it is not reasonably practicable for you to return to the same role.

A role will be a suitable alternative if:
(A) The work to be done is both suitable and appropriate for you to do in the circumstances.
(B) The capacity and place in which you are to be employed, and the other terms and conditions of your employment, are not substantially less favourable to you than if you had continued to be employed in your old job.
If your employer moves to a formal redundancy process, you benefit from additional redundancy protections which continue throughout your maternity leave and end on the date which is 18 months from the date of childbirth (if you notify your employer of that date, otherwise the protections expire 18 months from the expected week of childbirth). You will have the right to be offered a suitable alternative vacancy, if one is available. You are entitled to a trial period if you are unsure that a role is a suitable alternative. If you turn down a suitable alternative offer you may lose any redundancy payment you are entitled to. Whether a role is a suitable alternative will depend on the individual circumstances, not just the pay and grade. You would be able to point to differences in the work required, seniority and comparison of job descriptions.

A redundancy situation is where there is a closure of all or part of an organisation and where there is less work or a need for fewer staff. I would recommend asking your employer for more information about why your role is no longer available. Please be aware that this could reveal that your post is now redundant unless there is a suitable alternative. Your enquiry suggests that the role you are being offered would not a suitable alternative as it is a lower grade. You would be entitled to any redundancy pay that you qualify for and the notice period set out in your contract.

If your goal is to return to work I suggest exploring the roles available and raising any concerns about the role you have been offered. For example, to get clarity as to whether this is a permanent or temporary position and whether your employer regards it as a suitable alternative, their response so far suggests that they may consider this a temporary role that you can undertake to protect your pay while they restructure but this is not entirely clear and you are right to be cautious to protect your position going forward. If your employer provides a satisfactory explanation, you can accept the role on your return if you wish to, and ask for written confirmation that this is temporary and not considered a suitable alternative.

During the redundancy consultation you can continue to explore any suitable alternative roles which must be on not less favourable terms and conditions and seniority as your previous role.

I wish you all the best.

Dear Musicgirl2,

As a starting point, as you are no doubt aware, you are protected by law from being treated unfavourably because you are pregnant or on maternity leave (‘pregnancy and maternity discrimination’). You mention that you feel you have been disadvantaged by the criteria to apply for the training scheme because you are on maternity leave until February and are therefore not eligible to apply for it, as it requires a September start date.

The key question will be whether it is really necessary for the training scheme to start in September or if they would consider you for a later start date due to your maternity leave. You will need to consider what evidence you have to demonstrate that your employer’s actions or decisions were 'because of' your pregnancy or absence on maternity leave. Employers will rarely admit that pregnancy or maternity leave was the reason for their decisions. They will usually point to other reasons such as financial or performance-related reasons.

Your employer may argue that they would not consider you for the opportunity on this occasion because you recently applied for the role unsuccessfully so they are now looking for other candidates. It sounds from your description that the role you recently applied for and the new opportunity are essentially the same, but it may be worth clarifying this with your employer.

You should keep notes of what happened as well as a timeline of dates. The strength of any claim about discrimination will depend upon what can be proven (either by direct evidence or through a Tribunal being willing to make an inference) about what was the reason for your employer’s actions or decisions.

When deciding whether discrimination happened a Tribunal would first look to you to prove some facts from which they could infer that discrimination happened. If you can do that, the focus would then be on whether your employer can prove that your pregnancy / maternity leave had no impact on their decision making whatsoever. Or in other words, providing that you could prove some facts from which an inference of discrimination could be drawn, a Tribunal would find it to be discrimination unless your employer can prove that your pregnancy or maternity leave had no impact on their decision in any way – you do not need to prove that it was the only reason for the decision.

Separately, it is unclear whether you have been made aware of this potential promotion opportunity via your employer or a third party. Not being informed of promotion opportunities or other vacancies that arise during your maternity leave may constitute unfavourable treatment. If your employer has not made you aware of this opportunity, then this may be discriminatory in itself.

Given the difficulties of evidencing maternity discrimination and few options for free legal representation for bringing a claim, it is important to explore your employer's reasoning carefully and weigh up the risks of bringing a claim versus your goal of accessing this training opportunity and new role. I would suggest initially exploring any options to delay the start of the training until you have finished maternity leave or asking your employer about future opportunities. Some careful negotiation and being clear about the outcomes you are seeking may help you gain access to the training and promotion on return from maternity leave or shortly after.

I wish you all the best.

Dear 111222xx

Thank you for your query. As you have stated you are entitled to SMP for the full 39 week period (unless you start a new job in that period) but any enhanced maternity pay will end when your employment ends. Your contract may state that your employer is entitled to give you a payment in lieu of notice (PILON) so you should check whether your employer can terminate your contract immediately. You are also entitled to be paid for any untaken holiday that has accrued up to the end of your employment and any redundancy payment that you qualify for.

In relation to notice pay during maternity leave, by law you are entitled to at least one weeks’ statutory notice pay for each complete year of service. Your contract may provide for you to be given more notice than this. There are some complicated rules about whether you will get paid notice if you are on maternity leave when you are made redundant. If you are contractually entitled to at least one week’s notice more than your statutory notice period, you will only be entitled to notice pay during your maternity leave if your contract provides for it (this is not very common) or your employer agrees to pay it, for example, if you can negotiate it as part of a redundancy settlement agreement. If you are NOT contractually entitled to at least one week’s notice more than your statutory minimum notice, you can rely on your statutory (legal) rights and you are entitled to receive statutory notice pay during maternity leave.

However, even if you are entitled to notice pay, please note that your employer can 'offset' your SMP against any statutory or contractual notice pay paid in respect of the same week so you may not be entitled to both.
I hope that helps.

Dear Evarhi

Thank you for your enquiry.

I understand that you are seeking advice as to whether your employer should be continuing to pay you for the on-call shifts in circumstances where the reason you are unable to do the shifts is related to breastfeeding. Unfortunately breastfeeding rights are weak and it is not the case that any changes in working patterns due to breast feeding should not result in loss of pay. Pay is only protected in certain circumstances where the work or working conditions pose health and safety risks to the mother or her baby as described below.

An employer is under a duty to carry out a specific risk assessment for breast feeding mothers where their work is of a kind that could involve a risk to the health and safety of the mother and/or her child. You must notify your employer in writing (including email) that you are breastfeeding. If a significant risk is identified then the employer must do all that is reasonable to remove or prevent exposure to the risk that has been found. Unless the risk can be avoided through other action, the employer must temporarily alter the employee’s working conditions or hours of work, if this is reasonable and would avoid the risk. If it is not reasonable to alter the employee's working conditions or hours of work, or if the risk cannot be avoided, the employer must offer the employee suitable alternative work where it is available. The suitable alternative work must be on terms and conditions that are not substantially less favourable than the employee’s current terms and conditions. If there is no suitable alternative work available, or if the employee reasonably refuses it, the employer must suspend the employee for as long as is necessary to avoid the risk. An employee who is suspended on maternity grounds is entitled to be paid remuneration, however there are complicated rules around how much she can be paid and, where the employee has regular hours, they are only entitled to be paid basic pay and not elements such as commission, overtime or bonus payments.

It is only if the work or working conditions pose a health and safety risk to the breastfeeding mother or her child that the employer must (after first considering adjustments) offer suitable alternative employment and maintain substantially the same conditions or if that is not possible or available suspend on full pay. This provides some protection if you are exposed to certain substances that could affect your breast milk and may depend on the age of your baby, for example, if your baby is less than 6 months or has certain health conditions or is allergic to cow's milk. If this is the case I would recommend asking your health professionals for medical evidence to show your employer.

I understand that the reason you are unable to work on call is because you live too far away and, due to the length of the on call shifts, you would have to stay overnight which would mean, of course, that you cannot breast feed. Unfortunately, your employer is not obliged to continue to pay you as if you were working the full rota unless your working conditions pose a health and safety risk to you or your baby.

I believe your situation can best be characterised as a flexible working request that has been granted by your employer. You have asked not to work on call shifts because, due to you living too far away you cannot breastfeed during the nights and your employer has agreed to your request. However by agreeing to your request to take you off on call shifts, your employer is not obliged to continue to pay you the on call rates.

It may be worth exploring with your employer whether there are adjustments that can be made to the on call schedule that would enable you to still do some on call shifts or split shifts (i.e. a bespoke shift pattern) but I appreciate this may not be possible.

I am sorry not to be able to send better news and wish you all the best.

Dear Georgia111

Thank you for your question. I would recommend checking the terms and conditions of your school's maternity policy carefully. If you are required to have one year of service by the 15th week before your expected week of childbirth you will need to be sure that you meet these terms and conditions as even missing the qualifying period by a day or two will disqualify you from any enhanced pay available.

You are entitled to maternity leave if you are an employee and this is a day one right. This gives some job protection and the right to return to the same job.

If you are employed by the same employer for the first 26 weeks of your pregnancy, and you have average weekly earnings of at least £125 per week, you will be entitled to Statutory Maternity Pay. You must give your employer your MATB1 maternity certificate and the correct notice for SMP by the 15th week before you are due or as soon as possible after that week.

As far as your employer's enhanced maternity pay is concerned this will depend on the terms and conditions of your employer's maternity policy. You will need to check whether your employment at your previous school will count as continuous with your new school. For example, if both schools are state maintained local authority schools you are entitled to enhanced maternity pay if you have completed at least one year’s continuous service as a teacher with one or more Local Authority at the beginning of the 11th week before the expected week of childbirth. You can find the terms and conditions for state schools in the Burgundy Book which is online here: https://neu.org.uk/latest/library/burgundy-book
You will need to check if this applies to your current and previous school.

I hope that helps.

Dear Sandraoliva

Thank you for your query and I am sorry to hear about your difficult situation.

I understand that you have spoken to your manager and you are waiting for a response. You are entitled to take up to one year of maternity leave and SMP is paid for up to 9 months.

I have set out a number of options that you may be able to explore with your manager to extend your time with your baby and balance your need to maintain your sponsorship and manage with a low rate of SMP.

You are entitled to work for up to 10 days during your SMP period without bringing your maternity leave and pay to an end. These are called keeping in touch days. It is very important to check how much your employer would pay for a keeping in touch day and whether this would be in addition to SMP or your SMP would be deducted.

You could ask to work some keeping in touch days e.g. one or two days per week while your baby is little so that you can remain on maternity leave for a bit longer.

You could also ask for a phased return e.g. one or two days per week to start with, increasing to your normal hours after 3 months for example.

Whilst you have been on maternity leave, providing you are classed as an employee, you will have accrued (built up) paid holiday as if you were at work. You should ask your employer if you have any outstanding paid holidays to take and ask if you can book your holidays either as a block at the end of your maternity leave or take a few days holiday each week for the first few weeks back.

I suggest talking to your manager about the options above to see if you can reach an agreement. If you want to make a more formal request to change your working hours, for example, to return to work part-time so that you can balance work and childcare, you have the right to make a flexible work request.

You should ask your employer if they have a flexible work application form. Otherwise you can use the form on the ACAS website here and they have more information about asking for part-time work or reduced hours: https://www.acas.org.uk/statutory-flexible-working-requests

Finally, if you have returned to work and you are not well enough to work, you can take sick leave. You must follow your employer's sickness policy carefully and make sure to notify your sick leave in the correct way. After one week, you will need a note from your GP to cover any further absence from work. You will only be entitled to Statutory Sick Pay if you have average weekly earnings of at least £125 per week in the last 8 weeks.

I hope that gives you some options and you can reach an agreement with your employer to take some further time off or to have a more phased return to work.

Yes I have requested to do more keeping in touch . I did two in June . But I haven’t got any reply. My plan is to use my annual leave in September and work reduced hours weekly . While another employee who went on maternity before me . Is still on maternity not asked to come back like myself