Thanks to tighter rules and people having to pay a nominal amount to take a case, industrial tribunal cases have fallen. They should fall further now mediation is compulsory before a case goes to a tribunal, but one area where there can be problems relates to maternity and paternity pay and the potential for an employer to be accused of unwitting sex discrimination. Here taking advice before you act is essential, along with having an overview of the rules.
A woman is entitled to maternity leave of up to 52 weeks. The first 26 are ordinary maternity leave (OML) and the second 26 are additional maternity leave (AML). The earliest leave can begin is 11 weeks before the birth, but if there are complications the person can take normal sick leave. During the pregnancy you must give reasonable time for ante-natal and other medical appointments. Maternity leave pay is 90% of average weekly earnings for the first six weeks, then for the next 33 weeks the same 90% or £138 a week, whichever is the lower. These are statutory payments and there’s no need for an employer to pay more, unless they wish to do so as a gesture of goodwill. You can reclaim these payments in the same way as sick leave.
Paternity leave is two weeks at the same rates, although this can also be extended to 26 weeks unpaid. From next year a father and mother will be able to share 52 weeks leave, but will have to give their respective employers notice of when and how this will be taken.
For small businesses maternity leave can be a problem, due to the need to find someone to do the job, while keeping it open. There are some things you can’t do. If someone has benefits with their job, eg a mobile phone or company vehicle, that’s part of their employment and they can keep them while on maternity leave. You can’t ask a person when they’ll return to work, and if they give a date and change their mind, you can’t do anything about it. While they’re off they will still accrue holidays on the same basis as if they were at work, and the same applies to any agreed pay rises.
After 26 weeks OML a person has a right to return to exactly the same job. After AML they can ask to do so, but if that isn’t possible the employer will have to explain why and offer similar employment. This is where tribunal problems can arise, especially if an employer finds the maternity replacement employee better. Big problems arise where the post of someone on maternity leave is made redundant. A person can’t be singled out for redundancy because they’re on maternity leave, so the case for doing so has to be beyond challenge.
At the end of maternity leave a person can opt to resign, and face no penalty for doing so, despite the employer having to keep the job open. An employee may ask to switch to part-time work. An employer does not have to agree, but will have to give reasons for refusal. This may include the fact that there is no provision for a job to be part-time, but a blanket refusal could result in a claim for indirect sex discrimination.
It’s easy to become frustrated over maternity and paternity leave, so seeking the best possible advice before you act is vital, as this is an area where employers can be judged harshly