Family friendly rights 1 PDF

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e.g. maternity and paternity rights...

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Family friendly rights 1 – Maternity rights Equal Treatment European law, particularly the Pregnant Workers Directive (92/85/EEC) and the recast Equal Treatment Directive (2006/54/EC), require the implementation of the principle of equal treatment for men and women in ALL aspects of employment in particular, gives women who are pregnant or on maternity leave protected status in employment The Equality Act 2010 has inserted specific provisions to protect woman from being discriminated against at work because of pregnancy or maternity leave Further, there is a statutory regime setting out pregnant employees’ rights under the Employments Rights Act 1996 and Health and Safety at Work legislation Family friendly statutues have the aim of promoting: the balance of work and family rights, equal opportunities for men and women, and an assumption of equal share of family responsibilities for men and women. The Children and Families Act 2014 extended rights to include things such as shared parental leave. The Law  Equality Act 2010  Employments Rights Act 1996  Health and Safety at Work legislation Discrimination It is unlawful discrimination to treat a woman unfavourably because of her pregnancy or a related illness, or because she is exercising, has exercised or is seeking or has sought to exercise her right to maternity leave: s18(1)-(4) Equality Act 2010 Such discrimination cannot be justified However:  unlike in cases of direct sex discrimination, there is no need to compare the way a pregnant worker is treated with the treatment of any other workers.  If she is treated unfavourably by her employer because of her pregnancy or maternity leave, through-out the protected period - this is automatically discrimination  In some cases, employers have to treat workers who are pregnant or have recently given birth more favourably than other workers: s13(6)(b) The protected period

The protected period starts when a woman becomes pregnant and continues until the end of her maternity leave, or until she returns to work if that is earlier: s18(5)-(7). Unfavourable treatment An employer must not demote or dismiss a woman, or deny her training or promotion opportunities, because she is pregnant or on maternity leave A woman should not receive lower pay or inferior contractual terms for a reason relating to her pregnancy and a maternity equality clause is implied into her contract to ensure this: s73 The maternity equality clause applies to  the calculation of contractual maternity-related pay  contractual bonus payments during maternity leave and  pay increases following maternity leave Pregnancy of hers For pregnancy and maternity discrimination, the unfavourable treatment must be because of the woman’s own pregnancy However, an employee treated less favourably because of association with a pregnant woman, or a woman who has recently given birth, may have a claim for sex discrimination: s18(2) Knowledge of pregnancy There is no obligation on a job applicant or employee to inform the employer of her pregnancy until 15 weeks before the baby is due However, telling the employer triggers the legal protection, including the employer’s health and safety obligations Maternity rights in the UK to include:  Pregnant  Suspension from work on maternity grounds  Time off for antenatal classes  Breastfeeding Pregnant The Equality Act 2010 permits differential treatment of women at work where it is necessary to comply with laws protecting the health and safety of women who are pregnant or who have recently given birth

For example, the Management of Health and Safety at Work Regulations 1999, together with the Employment Rights Act 1996, ss66-68 implements the health and safety provisions in articles 4 and 5 of the EU Pregnant Workers Directive 92/85/EEC (O’Neill v Buckinghamshire County Council [2010)

Suspension from work on maternity grounds The woman is entitled is entitled to be paid her normal wages during this period, known as ‘maternity suspension’, unless she has turned down an offer of suitable alternative work: ERA 1996, s68 and s67(2) It would be sex discrimination to impose a change of duties or a maternity suspension on a woman where the level of risk is low and does not require it: New Southern Railway Ltd v Quinn EAT/0131/05 Time for antenatal care Pregnant employees have the right to paid time off to attend appointments for antenatal care: Employments Rights Act 1996, s55(1) There is no qualifying period for this right For this right to apply: the appointment must have been on the advice of a registered medical practitioner, midwife or nurse and, except for the first appointment, the employee must, if they are asked by her employer, provide a copy of a certificate showing she is pregnant and written proof of the antenatal appointment: Employments Rights Act 1996, s55(2)-(3) Antenatal care can include:  medical examinations, midwife appointments, antenatal and relaxation classes, and parent craft classes: Gregory v Tudsbury Ltd [1982]  The amount of time off must be reasonable and should include time off to travel there and back; waiting time and time spend attending the appointment or class  An employee cannot be required to make up the time she has missed at some other time, or to take annual leave to cover the time off Expectant fathers Since 2014, expectant fathers or the partner of a pregnant woman have the right to unpaid time off to attend two antenatal appointments with the expectant mother: Children and Families Act 2014, ss127-130 The time is capped at six and a half hours per appointment Also, October 2014, under the Children and Families Act 2014, those involved in a surrogacy arrangement and intending to adopt, are entitled to have unpaid time off to attend up to two antenatal appointments

The right is only available provided the father or partner of the pregnant women is in a qualifying relationship:  the pregnant woman’s husband, partner or civil partner i.e. she’s in a same-sex relationship  the father of the child  the parent of the child  intends to be a parent in a surrogacy arrangement, who meet the specified conditions Breastfeeding  The Equality Act 2010 states that it is discrimination to treat a woman unfavourably because she is breastfeeding  There is no express statutory right for employees to take time off to breastfeed  There is no statutory obligation on employers to provide facilities for expressing or storing milk, but an employer should nevertheless try to accommodate women who wish to do so Maternity leave  The rules regarding maternity leave is set out in the Employment Rights Act 1996 and the Maternity and Parental Leave etc. Regulations (MPL Regs) 1999  Statutory maternity leave last for up to 52 weeks – but only employees are entitled to this leave  There is no service requirement and no requirement to work a certain number of hours 3 types: 1. compulsory maternity leave This is the first two weeks (4 weeks for factory workers) after the date when the child is born; the mother must take this leave: MPL Regs 1999 reg. 8.

2. ordinary maternity leave (OML) All pregnant women are entitled to a period of 26 weeks of ordinary maternity leave (OML): MPL Regs 1999 reg. 7 Giving notice of intention to take ordinary maternity leave The employer must be told of the intention to take statutory maternity leave at least 15 weeks before the start of the week in which the baby is due

The employer must be told:  that the employee is pregnant  when the baby is due  when the mother wants the maternity leave to start The employer is entitled to: ask to see a copy of the doctor or midwife’s confirmation that the employee is pregnant and if the employee will be claiming statutory maternity pay, the employer can ask for a MATB1 Maternity Certificate, which gives the due date of birth: MPL Regs 1999, reg. 4(1)

3. additional maternity leave (AML) Any woman, who qualifies for OML, also qualifies for AML – this is where she is entitled to take a further 26 weeks leave on top of the OML i.e. 52 weeks in total: MPL Regs 1999 reg. 4(1) The right to take AML covers all pregnant employees regardless of length of service It starts immediately after OML and continues for a period of 26 weeks bringing the total period of leave allowed up to one year: MPL Regs 1999 reg. 7(4)

Terms of contract During statutory maternity leave, the employment terms of the employee taking the leave are protected, and if made redundant while on leave, there is special protection An employee on maternity leave is entitled to all normal employment rights except remuneration (wages) as the contractual right to wages is replaced by maternity pay: MPL Regs 1999 reg. 9 and s74 Equality Act 2010 Employees are entitled to the benefit of any pay rise and improvement to terms and conditions awarded during the leave period: MPL Regs 1999 reg. 18A(2): Gillespie v Northern Health and Social Services Board [1996] Reasonable contact: During the leave, an employer is entitled to take reasonable steps to keep in touch with their employees on maternity leave Right to be told:  The woman has the right to be told of any jobs that become available while she is on maternity leave, for which she be interested in applying  A failure to do so amounts to a breach of trust and confidence: Visa International Service Association v Paul [2004]

 And she has the right to be consulted about any changes to her job or reorganisation such as pending redundancy Keep in touch days: This is where employers and employees agree a woman on maternity leave can carry out work or training for up to 10 days, without losing her right to maternity leave or her right to Statutory Maternity Pay: MPL Regs 1999 reg. 12A. Returning to work early A woman will have to give her employer eight weeks notice of her intention to return to work early from maternity leave, if she so chooses: MPL Regs 1999 reg. 11. What if the mother does not want to return to work? There is no statutory requirement for women to return to work after their maternity leave period has expired That said, many mothers want to return to work part-time and there is the right for parents to request a change to working arrangements to care for their child (see flexible working later) – but there is no legal right to return to reduced hours Returning from OML  The employee is entitled to return to the ‘same job’  If the job is being made redundant she must be offered any suitable alternative employment: MPL Regs 1999 regs 10.  The terms and conditions must not be substantially less favourable  The employer may not argue that it is not reasonably practicable to allow her to return to her job Returning from AML  On expiry of the period of AML, the employee is entitled to the ‘same job’  If it is not reasonably practicable to allow her to return to the same job she must be offered a job which is ‘both suitable for her and appropriate for her to do in the circumstances’: MPL Regs 1999 reg 18(2)  The right is to return on terms and conditions no less favourable than if she had not taken maternity leave: MPL Regs 1999 regs 18(1) and 18A(1)(a)(ii) and (b)  Her employer cannot refuse to take her back just because her replacement is found to be a more effective worker Statutory rights to pay during leave  have worked for her employer for at least 26 weeks by the 15th week before the baby is due

 in the eight weeks (or two months if monthly paid) prior to the 15th week she has to have had average earnings of at least £112 a week (2016-2017)  by the 15th week before the baby is due, she has to have given her employer medical evidence of her pregnancy and told them when she intends to stop work and start claiming SMP and  she must have actually stopped work How much is it: The rate at which it is to be paid is:  90% of average weekly earnings for 6 weeks  followed by 33 weeks at a flat rate of currently £139.58 (2016-2017) When does it start?: SMP starts in the first week of maternity leave and continues until 39 weeks have passed or the employee returns to work, whichever happens first Who pays it?:  SMP is paid by the employer through the normal pay packet, who is able to reclaim from the government through the national insurance scheme: 167 Social Security Contributions and Benefits Act 1992  If a woman is refused SMP and believes she is entitled to it she should first write to her employer or make a formal complaint  If no agreement can be reached, she can apply to the local HM Revenue and Customs Office for a formal decision Women who do not qualify?:  Women who do not qualify for SMP may claim Maternity Allowance (MA) through her local Jobcentre Plus office  There are requirements to qualify for MA and currently MA is worth £139.58 (20162017) a week payable for 39 weeks  The condition for this benefit is that she has had at least 26 weeks’ employment, within the previous 66 weeks...