In 2015 we asked a number of women what their biggest concerns were about their rights when pregnant, during maternity leave and upon their return. We felt that answering their questions would also be helpful for employers and wrote an article about it. Three years later, women can now take maternity leave and shared parental leave with their partners. What else has changed and what has stayed the same?
Below are the questions asked in 2015 with updated answers:
Q. Can someone make you redundant on maternity (or shared parental) leave and how does it work with years of service?
A. Yes, women on maternity leave and both women and men taking shared parental leave can be made redundant although they have to be given preferential treatment over others who aren’t on maternity leave when it comes to making offers of suitable alternative employment. The calculation for redundancy pay is based on years’ service as at the date of termination of employment.
However, if an employer makes a woman on maternity leave (or a woman or man on shared parental leave) redundant earlier than s/he would have been made redundant were they not on that leave, in order to reduce the years’ service and hence the amount of redundancy pay, then if the reason for doing so was because s/he was on maternity/shared parental leave, that would be unlawful discrimination.
If a woman who is entitled to Statutory Maternity Pay (SMP) is made redundant, she is still entitled to that SMP even after the termination of her employment. This applies equally to Shared Parental Pay (ShPP).
Q. When an employer declines your request for flexible working on return from maternity/shared parental leave, what course of action can you take short of having to leave?
A. Whilst employers are entitled to refuse flexible working requests, they can only do so for a number of prescribed reasons. However, even if they are able to justify their refusal for one or more of those reasons, the employee may still have grounds to appeal and even to pursue a discrimination claim. Such a claim can be pursued whilst remaining in employment although in practice, most women will resign and pursue a claim of constructive dismissal at the same time. Discrimination claims arise because the requirement for employees to work full-time can indirectly discriminate against women (as well as disabled workers and those of a particular age or religion) because women are still, in most families, the primary care-givers. Indirect sex discrimination occurs where:
- A (in this case the employer) applies to B (the employee) a provision, criterion or practice (PCP)
- A applies (or would apply) that PCP to persons not of the same sex as B.
- The PCP puts or would put persons of B’s sex at a particular disadvantage.
- The PCP puts or would put B at that disadvantage.
- A cannot justify the PCP by showing it to be a proportionate means of achieving a legitimate aim.
The PCP in this case is the requirement to work full-time. It is a requirement which in most workforces is applied to everyone, irrespective of that person’s sex.
However, the requirement to work full-time puts or would put women at a disadvantage as women are the ones most likely to need to work part-time after having a child. If the particular employee who has made the flexible working request would, herself, be put at that disadvantage then, if the employer cannot justify the PCP by showing it to be a proportionate means of achieving a legitimate aim (namely the effective running of the business), then the employee is likely to succeed in a claim for indirect sex discrimination. The proportionality test is therefore the key to a successful claim. If the disadvantage to the employer of allowing the request is minor when compared to the disadvantage to the employee of rejecting it, then the justification defence will fail.
Q. What about men wanting to work flexibly? Aren’t they able to bring indirect sex-discrimination claims if their requests are turned down?
A. Whilst men cannot bring indirect sex discrimination claims because men are not proportionally more disadvantaged than women by the requirement to work full-time, they may be able to bring a direct sex discrimination claim (for which there can be no justification defence) if they can show that women’s requests at their place of work are almost always accepted. In that case, the discrimination is likely to be because he’s a man, not because of the justifiable needs of the employer.
Q. What about childcare vouchers? – These no longer exist but the answer below is relevant as it deals with what happens to benefits of employment rather than remuneration.
A. Childcare vouchers are a benefit and employers must therefore continue to provide them during maternity leave unless the employee has opted out of them before going on leave. Even though they are normally provided as part of a salary sacrifice scheme, as they cannot be deducted from SMP, unless the employer pays enhanced SMP such that there is still the SMP amount left after the deduction for the voucher, then the vouchers have to be paid for by the employer whilst the employee is on leave. However, employees who have not opted into the scheme before going on leave cannot opt in until after they return to work just to obtain the benefit.
Q. How do you work out what you owe an employer should you want to leave employment during your maternity (or shared parental) leave and the employer has given you an enhanced package?
A. The answer to this will be in the contract of employment and will be different depending upon the specific terms of the employer’s enhanced maternity (or enhanced shared parental or paternity) pay scheme. For employers therefore it is very important to be clear in your contracts what happens to enhanced payments if the employee doesn’t return to work after maternity (or paternity or shared parental) leave or if s/he leaves within a certain period of time following his/her return.
Q. If your employer pays a bonus which is formulated in accordance with both company and personal performance, are you entitled to any part of that whilst on maternity (or shared parental) leave?
A. Any contractual provisions relating to pay or bonus must be treated as providing for the following to be given to a woman on maternity leave or a man on shared parental leave, in the circumstances in which it would normally be given:
- Pay (including bonus) in respect of the period before statutory maternity (or shared parental leave) leave started
- Bonus in respect of the period of compulsory maternity leave (i.e. the first 2 weeks after birth)
- Bonus in respect of the period after the end of maternity, paternity or shared parental leave
This therefore amounts to a pro-rated bonus entitlement.
Where a bonus is based on individual measurable performance criteria (such as a sales target), the extent to which those criteria should also be adjusted or pro-rated to take account of the time spent on maternity, or shared parental leave should also be considered. For example, should a sales target of £100,000 (below which no bonus would be payable) be halved to £50,000 if the employee has spent half the year on maternity or shared parental leave? Arguably a failure to do so would amount to pregnancy and maternity discrimination, indirect sex discrimination, detriment under 47C of Employment Rights Act 1996 and/or detriment under regulation 19 of the MPL Regulations.
Where bonus payments are entirely discretionary and are based upon a manger’s subjective judgement rather than any objective performance criteria, there is scope to argue that a decision not to award a bonus to a woman on maternity leave was negatively influenced by the employee’s maternity leave and hence discriminatory. The same would apply for a man or woman taking shared parental leave. However, this would be a difficult argument to make as in most cases these days there is objective data to back up the decision to award (or not award) bonuses.
Q. Do women on maternity leave and those taking shared parental leave accrue bank holidays?
A. All employees must be given the right to take their statutory annual leave entitlement, currently 5.6 weeks (28 days). A woman who is pregnant must be given the right to take all her entitlement either before she goes on leave or upon her return. It cannot be taken during leave nor can she be paid in lieu save on termination of her employment. The same applies to men taking shared parental leave.
There is no statutory right to time off (paid or otherwise) on any of the 8 public holidays so it is a matter for the contract of employment whether those days are part of the 5.6 weeks’ leave or not.
If the employee’s contract of employment provides for 20 days holiday plus the 8 public holidays, (i.e. the 28 days of statutory annual leave) then the employee must be given the right to take her statutory annual leave before she goes on maternity leave or after she returns – i.e. all 28 days even if some of them aren’t actually bank holidays as the minimum amount of holiday a worker is entitled to in the UK is 5.6 weeks including all bank holidays. The same applies for men taking shared parental leave.
However, if the employee’s contract is more generous, and for example she is entitled to say 25 days plus the bank holidays, then the statutory entitlement is fulfilled once she has taken all her contractual leave and only 3 public holidays and in theory therefore, if she hasn’t taken her full accrued entitlement before she goes on leave, she can only take the statutorily accrued entitlement upon her return and will lose the extra 5 days. This is because current case law views the extra holiday as a right to remuneration not a right to leave and there is no right to remuneration during maternity leave. The same applies to men taking shared parental leave.
However, the position could change as the current case law on this is only at EAT level so employers who want to ensure they are not at risk of claims should allow women returning from maternity leave to take all their accrued but untaken holiday upon their return, even if that includes days in lieu of bank holidays which would have been paid holiday but for the woman having been on maternity leave.
Q. What’s the situation with Keeping In Touch (KIT) days?
A. Women can take up to 10 KIT days without bringing their maternity leave to an end or losing their right to SMP. Both men and women can take up to 20 KIT days during periods of Shared Parental Leave without bringing that leave or any entitlement to Shared Parental Pay to an end.