Our expert Employment lawyers answer your questions relating to pregnancy rights at work.
If she is earning at least the Lower Earnings Limit for National Insurance purposes (currently £118 per week) she will qualify for Statutory Maternity Pay (SMP) if, by the 15th week before her baby is due, she has been employed for 26 weeks. There is a maternity pay and leave calculator for employers on the GOV.UK website. You can claim 92% of SMP back from the government, 103% if you are a small employer.
There is no obligation on job applicants to tell prospective employers they are pregnant. If you asked, that in itself would probably be an act of discrimination. If someone told you that they were and didn’t get the job, that would indicate that you had discriminated and the onus would be on you to show that their pregnancy did not influence your decision in any way.
As an employer, you are under a duty to assess workplace risks and alter working conditions or hours of work to avoid any significant risk to the health and safety of new or expectant mothers in the workplace. This assessment should be done regardless of whether any employees are pregnant. The result of the assessment must be given to your employees but not necessarily in writing. If you fail to carry out the risk assessment, you may commit an act of unlawful pregnancy and maternity discrimination. If the assessment identifies a significant risk, you must alter the working conditions to avoid this. If this is not possible, offer other suitable alternative work or ultimately suspend your employee on full pay if this work is not available.
Unfavourable treatment because of pregnancy related illness is unlawful discrimination under the Equality Act. You should be disregarding absence caused by morning sickness and if you took any disciplinary action risk facing an Employment Tribunal claim. Is there flexibility in the business to alter her hours so that she comes to work later? She might welcome this as a short-term solution.
Since June 2014, any employee with at least 26 weeks’ continuous employment can make a request for flexible working under the statutory scheme for any reason. However the new scheme is much less rigid than the old one and allows the employer 3 months to deal with the request. You should approach the request in the same way you would have done anyway.
As long as the dismissal has nothing to do with this employee’s pregnancy there is a fair reason for dismissal, it is possible to dismiss a pregnant woman. We strongly advise that you are extremely careful to record performance issues and the dates these have been raised. If you are making a pregnant woman redundant, then you must be clear that this is a fair redundancy and that she has not been unfairly selected because of her pregnancy.
Remember that if there is a claim for any type of discrimination then the employee or worker does not have to have two year’s service to bring a claim.