How to Deal with a Pregnant Employee
A pregnant employee is given significant protection by law and entitled not to be discriminated against on the grounds of pregnancy and maternity during the “protected period”. This covers the time from when she becomes pregnant until the end of her maternity leave and it also includes job applicants.
Failing to know how to deal with a pregnant employee will not be a defence against a pregnancy and maternity discrimination claim.
Employment tribunal claims for pregnancy and maternity discrimination can be brought irrespective of an employee’s length of service – and compensation is uncapped.
What rights does a pregnant employee have?
- The right to paid time off to attend antenatal appointments
- The right to 52 weeks maternity leave (from day one of employment)
- The right to statutory maternity pay (if they qualify)
- The right not to be treated unfavourably – unfavourable treatment would amount to
- direct discrimination due to pregnancy and maternity, and will always be unlawful.
Examples of unfavourable treatment:
- Derogatory comments
- Exclusion from training or other normal activities
- Removal of responsibility
What is a maternity risk assessment?
As an employer, you may well be asking yourself “how do I deal with a pregnant employee under health and safety rules”? As soon as you are aware that an employee is pregnant, you should arrange to conduct a health and safety risk assessment, if you deem it necessary.
Employers are required to make a general assessment of health and safety risks for all employees while at work and this will incorporate a more specific risk assessment where it identifies women of childbearing age. This includes employees who have given birth in the last six months and for the duration they are breastfeeding. Below are some examples of steps which can be taken to reduce or remove identified risks to the pregnant employee:
- Consider changing night shifts to day shifts during pregnancy, especially if there are any pregnancy-related health issues.
- Remove tasks from the employee’s role that might pose a risk to her health or safety.
- If the risks to the pregnant employee are significant in her current role, identify whether she can be transferred to an alternative job – this does not mean you can unilaterally change her terms and conditions to less favourable ones.
Should there be no safe way to manage any risks to the pregnant employee, then you will have to place her on paid suspension until she commences her maternity leave.
How much time is an employee allowed for an antenatal appointment?
They have the right to a reasonable amount of paid time off to attend medical examinations, antenatal care and any associated relaxation or parentcraft classes, as advised by the employee’s GP. The time includes travel time and you should not ask the employee to make this time up.
Be aware that agency workers with 12 weeks’ service also have this right.
Employers are allowed to request evidence of all appointments other than the first one.
How to deal with a pregnant employee who wants to know her maternity rights?
This is an easy one – discuss this with her! Communication is key when managing employees and this is even more important when an employee is pregnant.
You may speak with her in the first instance to outline her maternity rights and entitlements. Once you receive her MATB1 form, you will need to confirm the details in writing to her. Your letter should include the following details:
- Acknowledgement of her maternity leave request.
- Confirm the maternity leave she is entitled to, and the start and end dates of her maternity leave.
- Reference how her maternity leave may be automatically triggered to start earlier than she has chosen, if she is absent due to a pregnancy-related condition within four weeks of the baby’s due date.
- Advise the employee of her eligibility for statutory maternity pay and alternative options, if she does not qualify.
- Explain how payment is made and when it will start.
- You may wish to detail annual leave entitlement and arrangements.
- Reference ‘keeping in touch days’ and shared parental leave rights.
- Confirm that the employee’s normal terms and conditions will continue throughout her maternity leave other than her pay.
- Explain what the employee should do, if she decides not to return to work after her maternity leave.
- Confirm how her personal data will be processed in line with data protection laws.
Does a pregnant employee still have the right to take holidays?
As stated above, all pregnant employees are entitled to 52 weeks’ maternity leave from day one of their employment. Employees should be encouraged to use all of their annual leave entitlement before they commence maternity leave, if their maternity leave continues beyond the end of the holiday year.
Here’s an example:
- Holiday year – January to December.
- Pregnant employee is due to take maternity leave on 1st March and works full time, so is entitled to 28 days holiday per year including bank holidays.
- Pregnant employee has taken 5 days by the end of January.
- Pregnant employee has 23 days to take before her maternity leave commences on 1st March.
You can see from the above example that it is important to plan ahead when it comes to the employee’s absence, as she is unlikely to have many days at work in that year.
Here’s an example of the same employee returning to work:
- Employee returns on February 28th and has her full entitlement of 28 days to take between then and the end of December.
- The employee may choose to end her maternity leave early by giving the correct notice and then take annual leave; this will mean that she will be paid at the rate she receives annual leave and, technically, back to work albeit on holiday. After this holiday, she will return to work as normal.
Many employees choose to return early, as statutory maternity pay is only for 39 weeks and then there’s no payment due to the employee. Holidays cannot be bought out; this is only permitted when an employee leaves the business.
How do I manage a pregnant employee in respect of statutory maternity pay?
Firstly, you need to calculate if your employee is entitled to statutory maternity pay. To do this, calculate whether she has at least 26 weeks’ continuous service ending with the 15th week before the expected week of childbirth. If she has, identify whether her average weekly earnings are at least the current rate of the lower earnings limit for national insurance purposes. If these conditions are met, then she will be entitled to Statutory Maternity Pay.
Can I dismiss a pregnant employee?
If the reason is directly related to her pregnancy, then no! This would be considered automatically unfair and amount to pregnancy and maternity discrimination. You can guarantee this will result in a costly employment tribunal claim against your business.
If we rephrase the question and ask, “how do I manage a pregnant employee who is not performing”? then this is entirely different. Employers are allowed to treat issues relating to conduct, timekeeping or attendance, or when pregnant employees underperform. When you manage an pregnant employee in this manner, it’s essential that you do so carefully and ensure there is no discrimination. Take factors, such as tiredness, fatigue and sickness, into account. Have these factors impacted on the employee’s performance? If so, they are likely to be directly related to her pregnancy.
Has the employee missed deadlines due to attending medical and antenatal appointments? This will also need to be considered. Has the employee missed important briefings or training due to pregnancy related absence, again, factor this into your management of the employee. Ensure all action is documented following a transparent and fair management of the process.
How to deal with a scenario involving a pregnant employee
Pregnancy and maternity is too big a topic to cover in one blog, so we have identified common questions that may require you to seek HR advice.
- Can I make a pregnant employee redundant?
- We are due to offer a pay rise to all our employees – does an employee on maternity leave still qualify for this?
- I have an employee who has become pregnant whilst on maternity leave, what do I do?
- Since becoming pregnant, my employee is always sick – what do I do?
- How do I deal with a pregnant employee on a fixed-term contract?
- How do I cover a pregnant employee’s maternity leave?
- Can I contact an employee on maternity leave?
If you found this blog of interest and you wish to discuss any aspect of this article, or you would like to find out more about Jude Read-HR Consultancy, then please call 01455 231982 today – or send us an enquiry via our contact form.