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Employers: Managing maternity leave

What is unlawful maternity discrimination?

Unlawful maternity discrimination is discrimination that relates to an employee’s maternity leave.

There are three types of maternity leave:

  • compulsory maternity leave: two weeks immediately after the birth, which all employees entitled to maternity leave must take
  • ordinary maternity leave: the first 26 weeks of leave, including the compulsory maternity leave period
  • additional maternity leave: a further 26 weeks of leave

 It is unlawful maternity discrimination to treat a woman unfavourably because:

  • she is on compulsory maternity leave
  • she is taking or is trying to take ordinary or additional maternity leave
  • she has taken or tried to take ordinary or additional maternity leave

In addition to maternity leave, employees may be entitled to shared parental leave. This is leave of up to 50 weeks which can be shared by parents (who are employees) once the mother has given notice to shorten her maternity leave entitlement or returned to work.

Find out more about shared parental leave on GOV.UK.

The law is unclear as to whether unfavourable treatment of a woman because she has taken or tried to take shared parental leave will count as maternity discrimination, although you must not disadvantage or dismiss an employee for taking, seeking to take, or because you believe they are likely to take shared parental leave.

See the Acas guidance on shared parental leave and pay.

Who is protected from maternity discrimination and over what period?

It is maternity discrimination for you to treat an employee unfavourably because they are on compulsory maternity leave.

Employees are protected from maternity discrimination for taking or trying to take ordinary and additional maternity leave. It is maternity discrimination to treat someone unfavourably because of her ordinary or additional maternity leave, even if the treatment happens after the maternity leave has come to an end. For example, if an employee’s job is changed unfavourably on her return from leave because she has been on maternity leave, this would be unlawful maternity discrimination. This is different from when protection from pregnancy discrimination applies. 

What about workers who are not entitled to maternity leave?

Workers and job applicants not entitled to maternity leave are protected from pregnancy discrimination throughout their pregnancy and for two weeks immediately after their pregnancy ends. After that ‘protected period’ a worker (not entitled to maternity leave) who is treated less favourably than another worker because she has taken time off following the birth of her baby may be able to claim sex discrimination.

Factory workers are prohibited from working for four weeks after giving birth regardless of whether they are entitled to maternity leave. For factory workers not entitled to maternity leave the first two weeks of that period will fall within the ‘protected period’ and they will be protected from pregnancy discrimination. Unfavourable treatment after the ‘protected period’ up to the end of their compulsory four week absence is likely to be pregnancy and maternity or sex discrimination.

What is unfavourable treatment?

Unfavourable treatment is where a woman is treated badly (unfavourably is the legal term) because of taking, trying to take or having taken maternity leave. Some examples are where a woman is:

  • made redundant: this would include failing to consult her because she is on maternity leave, disadvantaging her in the selection process, not offering her suitable alternative available work
  • not promoted
  • not offered training: it is particularly important to give an employee the opportunity of attending training if this will affect a pay rise or promotion
  • not told about suitable job opportunities
  • not consulted about a re-organisation which affects her job in a detrimental way
  • not allowed to return to the same job after maternity leave or some of her responsibilities are removed and re-allocated
  • dismissed

In some situations you may need to treat a woman on maternity leave more favourably to remove any disadvantages she might suffer because of being on maternity leave.

Employees’ rights during ordinary and additional maternity leave

Employees are legally entitled to the benefit of their terms and conditions (except pay) during their maternity leave. This includes, for example:

  • accruing annual leave entitlement. If an employee takes one year’s maternity leave she is entitled to her annual leave entitlement for the year, which can be taken at a time agreed with you
  • full pension contributions for the period of paid leave, which is likely to be 39 weeks of statutory maternity pay (SMP); the employee contributions are based on actual pay but your contributions are based on the pay she would receive if she was at work
  • participation in share ownership scheme
  • membership of a health club
  • payment of professional subscriptions
  • health and life insurance
  • use of company car, unless it is for business use only
  • use of mobile phone and laptop unless it is for business use only
  • the benefit of a pay rise during the maternity leave period

Special provision for a woman on maternity leave

In some situations you may need to treat a woman on maternity leave more favourably to remove any disadvantages she might suffer because of being on maternity leave.

Special provision for a woman in connection with her pregnancy, childbirth or maternity leave is not sex discrimination against a man, provided that the action you take does not go beyond what is necessary to rectify her disadvantage. For example, when carrying out a performance assessment exercise based on meeting annual targets an employer must find a proportionate way to adjust the scoring to compensate for the fact that a woman’s score would otherwise be lower because she was on maternity leave for part of the period being assessed.

Contact during maternity leave

There are situations when you must contact an employee who is on maternity leave. For example, you must consult her about any redundancies, job opportunities and access to training or promotion.

It is good practice to agree with the employee, preferably before the start of maternity leave, what type of contact you will have during her maternity leave. For example, continued access to the firm's intranet, copies of relevant meetings and access to email.

Keeping in touch (KIT) days

If you agree, an employee on maternity leave can choose to work up to 10 days without it affecting her statutory maternity pay. You are not legally required to pay for working on KIT days, but many employers do pay the normal rate. It is good practice to agree with the employee what work she will be doing and what she will be paid. Remember she may have childcare costs. See the GOV.UK guidance on employee rights when on leave.   

If an employee takes shared parental leave she or he can work up to 20 days during this time (known as SPLIT days). These days must be paid. For more information about shared parental leave see the GOV.UK guidance on shared parental leave and pay.

Returning to work after leave

In most circumstances, you must allow an employee to return to the same job. However, the right to return is slightly different when the employee is returning from ordinary maternity leave, when there must be no change to her job, and return from additional maternity leave when you may, in very limited circumstances, offer the employee a suitable alternative job instead. Where those circumstances don’t apply but you do not allow an employee to return to her job this will be maternity discrimination, for example if you don’t let her return to her job because you want to keep the maternity cover in her job.

There are similar rules about what should happen when an employee returns to work after taking shared parental leave.

Flexible working requests

An employee on maternity leave may ask to return to work on different hours or working pattern. You must consider any request in a reasonable manner, following the ACAS code of practice on handling in a reasonable manner requests to work flexibly. Refusal of a request, which is not justified by business needs, may be indirect sex discrimination.

Other relevant laws

  • direct sex discrimination: where you are treated less favourably than a man because you are a woman (not because you have been on maternity leave). For example, where a woman taking shared parental leave is treated less favourably than a man taking it
  • indirect sex discrimination: where an employer applies a clause, standard or practice to both women and men that puts women at a particular disadvantage and it is not necessary for the business (this occurs most commonly where a woman is refused flexible working)
  • victimisation: where you are disadvantaged because you have made a complaint of discrimination
  • protection from a detriment (that is a disadvantage): where you are disadvantaged because of your pregnancy, maternity leave or other type of family leave
  • automatic unfair dismissal: where you are dismissed because you are pregnant or taking, will take, or have taken a type of family leave. The usual rule that an employee has to have two years' employment before they can claim unfair dismissal does not apply to automatically unfair dismissals, which you can claim from day one. See guidance on unfair dismissals on GOV.UK
  • unfair dismissal: after two years employment with the employer, you can claim if there is no ‘fair’ reason for your dismissal or there has been an unfair dismissal procedure. See guidance on unfair dismissals on GOV.UK

Last updated: 04 Dec 2018