Managing Maternity Leave

With changes on their way, now is the time to obtain the information your business needs to efficiently manage maternity leave, Dave Howell says

For small business owners, planning for maternity leave is vital. It is also critical to understand the rights pregnant employees and expectant fathers have, as this can include maternity pay, pension contributions, flexible working requests, whether company cars and phones can be maintained and an employee’s right to return to work.

“Small businesses tend to ignore maternity leave regulations until they are faced with a pregnant employee seeking to take maternity leave,” Verity Saxon, a solicitor with employment law firm Doyle Clayton, says. “They then have to get to grips with a complex area of the law in a short space of time.

“In some cases, they will continue to ignore them and hope the problem goes away. Managing maternity leave can prove difficult, even for large companies with well resourced human resources functions. Unsurprisingly, it can prove to be a minefield for small business owners with no HR support.”

### Variables ###

As a small business owner, the number of variables that can impact on the maternity leave your company must support can be difficult to understand. Often the level of pay and eligibility for maternity leave can be confusing. For instance, many employees will be entitled to maternity leave, but not meet the eligibility criteria for Statutory Maternity Pay, as their earnings may not be high enough. However, they could qualify for Maternity Allowance, paid by the Department for Work and Pensions.

“Small and medium-sized enterprise owner/ managers should get advice from a professional who understands the subject, is up to date with the legislation and understands the rights during and after pregnancy,” Allison Peasgood, formerly a HR director with a major finance organisation and now a director of training and compliance specialist OMS, advises.

“For example, you can fall foul of equal rights legislation by asking a woman to attend things that impinge on her child care responsibilities. The law sees that the women is responsible for child care.”

Next year will see a major change in how maternity leave is organised. Law At Work’s employment law and HR training manager Lorna Gemmell explains: “Parents of babies due on or after April 5, 2015 will qualify for shared parental leave, which allows a more flexible approach to leave after the birth or adoption of a child. Both parents will be able to share 52 weeks’ leave and 39 weeks’ statutory pay between them in an endless variety of combinations.

“Businesses will need to start thinking now about what this means for them. How will they cope with male employees potentially being out of the workplace for up to a year? Will they offer enhanced pay to employees on shared parental leave if they currently offer enhanced maternity pay? Do they have the administrative resources to deal with the complicated notification requirements associated with the new scheme?”

Lorna adds: “The new scheme doesn’t just change the landscape for male employees, as a female employee who intends to take leave can use the new rules to achieve greater flexibility. For example, in some cases she will be able to return to work at the end of her maternity leave and then take a period of shared parental leave at a later date. That could prove difficult for employers to manage, particularly where temporary cover is required.

“Employers should consider what the new regime could mean for them and how they will approach these issues. However, there is no need for panic. The similar, less flexible scheme that is in force at the moment has had an exceptionally low take-up [0.8 per cent in 2011/12 and 1.4 per cent in 2012/13]. Arguably, there is no reason to suspect this scheme will be any more popular. The government has said that it anticipates take-up of between two per cent and eight per cent.”

In terms of pay, eligible employees can be paid up to 39 weeks’ statutory maternity pay, which is 90 per cent of their average weekly earnings before tax for the first six weeks and the remaining 33 weeks at £138.18 or 90 per cent of their average weekly earnings, whichever is lower. There is a facility for companies to recover this statutory pay from HMRC, subject to eligibility.

One area that could be contentious is if your business needs to make an employee redundant while they are on maternity leave. Clearly, this scenario has to be handled with care to avoid discrimination.

The advisory, conciliation and arbitration service ACAS advises: “If you are reorganising and/or need to make employees redundant and this includes someone who is pregnant or on maternity leave, you need to check the redundancy is genuine and necessary, ensure you consult and keep in touch, establish non-discriminatory selection criteria and consider alternative work.

“You must be careful to ensure the redundancy is for a genuine reason, is necessary now and is not caused by the pregnancy or maternity leave itself. A reason could be the closure of the business or employee’s workplace or because of a diminishing need for the employee to do the available work.”

### Obligations ###

Verity Saxon says: “Many employers think you cannot make an employee redundant if they are on maternity leave. This is not true, although you cannot make them redundant for a reason connected to their pregnancy or the fact they are on maternity leave. However, there is an obligation to offer any suitable available vacancy to a potentially redundant woman on maternity leave in priority to others. “Other areas of confusion include rights on return to work - are they entitled to return to the same job? Also, dealing with pregnancy related sickness. Pregnant employees have a protected period lasting from conception until the end of the statutory maternity leave period. Dismissing an employee or subjecting her to any detriment as a result of a pregnancy or maternity related illness during this period is unlawful.”

Ultimately, your business has a duty of care towards its employees. This is especially the case during pregnancy, but also after the birth of a child. Planning is vital to ensure maternity leave complies with all the current regulations and that your business is aware of the changes coming next year.

Taking advice is critical if you have any doubts regarding your enterprise’s maternity policy. This aspect of your business doesn’t need to be a burden if you take the time to understand the current legislation and apply it sensibly.