Pregnancy and maternity leave: Legal protections for employees and risks for employers

According to recent data released by Pregnant Then Screwed, a charity which focuses on the right of pregnant individuals and mothers, 12.3% of working mothers are dismissed, constructively dismissed or made redundant while pregnant, on maternity leave or when returning from maternity leave. This could mean that up to 74,000 women each year lose their job due to being pregnant or having taken maternity leave.

There is also some evidence that this position could become worse in the coming months as CIPD have warned that 32% of employers are currently planning to reduce the size of their workforce or are recruiting fewer people. This being the highest level of employee uncertainty in job security in the last 10 years, outside of the COVID-19 pandemic.

With these two surveys combined, employers may be worried about how to deal with pregnant employees or those returning from maternity leave in the unfortunate event that an employer faces the prospect of needing to cut jobs as well as other considerations which they need to be mindful of when supporting a pregnant employee.

Below we outline key considerations for employers.

Dismissal for pregnancy-related illness

If an employee is dismissed during or after their Statutory Maternity Leave due to a pregnancy-related illness suffered during the period between becoming pregnant and the end of a person’s maternity leave, this will be both unlawful pregnancy and maternity discrimination and an automatically unfair dismissal.

Employers should support employees by:

• Making adjustments to reduce absence.
• Excluding pregnancy-related sickness from absence triggers (e.g. the Bradford Factor).

Health and safety obligations

All employers have a responsibility to protect the health and safety of their employees, and this duty is further heightened for expectant mothers. In accordance with the Management of Health and Safety Regulations 1999, employers are expected to:

1. Carry out a risk assessment to identify any risks to employees who are pregnant;
2. To mitigate or remove potential risks by make alterations to an employee’s working conditions or hours of work; and
3. Where it is not possible for a pregnant employee to safely carry out their role, to offer suitable alternative work on terms that are not substantially less favourable.

Suspension on medical grounds

The law recognises that there will be some occasions and working environments where it is not safe for a pregnant employee to be present at work whether in their existing role or an alternative one. In those circumstances, employers are permitted to suspend an employee for as long as it is necessary to avoid the risk. Any suspension should be on full pay. Employers should not jump to this option in haste, and it should be viewed as a last resort. A decision to suspend should ideally be made with the agreement of the employee and in some cases, an employer might seek the advice of occupational health or the employee’s GP to support the decision whether it is safe for the employee to remain at work. Any suspension should be reviewed regularly, and it should not be assumed that once on suspension an employee will remain off work up to the start of their maternity leave, though that might be the case.

Time off for antenatal appointments

Pregnant employees have a statutory right to paid time off for the purposes of antenatal appointments. What is covers is not defined in law however, the definition is thought to be wide and include relaxation and parentcraft classes. There is no length of service requirement, meaning that all pregnant employees have the right from day one of their employment.

Employers do have the right to refuse time off to attend an appointment but only where it is reasonable to do so. Employers would be well advised to avoid using this discretion wherever possible and encourage employees to give as much notice as possible and booking appointments at the start or end of a working day to minimise any disruption and/or allow business planning for cover.

Protection from redundancy

Pregnant employees and those returning from maternity leave enjoy special protection from redundancy in the event that such a situation should arise. Employers should be mindful of this and plan accordingly whenever considering commencing a redundancy consultation.

As of 6 April 2024, the protected period includes the duration of the employee’s pregnancy plus up to 18 months after the birth of the child (inclusive of any Statutory Maternity Leave). During this protected period, if a redundancy situation should arise and "it is not practicable by reason of redundancy" for the employer to continue to employ the employee in their existing role, the employee is entitled to be offered a suitable alternative vacancy (where one is available). This is effectively a rare example of positive lawful discrimination – those employees who are protected are entitled to more favourable treatment than other employees. A failure to comply with this obligation would amount to an automatically unfair dismissal.

The alternative vacancy must be both suitable and appropriate for the employee as well as being on terms which are no less favourable than the terms which the employee is currently employed in their existing role. There is however no obligation on an employer to create a role for a protected employee nor design a vacancy around the skillset and experience of a protected employee. Equally, so long as the vacancy offered is suitable and appropriate, there is no obligation to give an employee the choice of roles (should multiple positions exist).

This duty is onerous on employers however suitable alternative work is only required where it is available. If there are no vacancies, then a pregnant employee or one who is returning from maternity leave can still be made redundant, assuming that there is a genuine redundancy situation and fair and meaningful consultation takes place. The duty is however a high one and therefore larger organisations may struggle to argue that there is no suitable work which can be offered, particularly in a situation where the redundancies are because of a potential restructure. Where an employer does decide to proceed to make a protected employee redundant, this should ideally be with the employees’ agreement that there are no suitable or appropriate vacancies and with a detailed explanation of any decision to unilaterally take the decision not to offer suitable alternative work.

Flexible working requests after maternity leave

Oftentimes having a child brings about major changes in an employee’s professional life and priorities can change. Accordingly, employees returning from maternity leave represent a circumstance where flexible working requests might be made. A flexible working request is used where an employee wishes to make a permanent change to their working arrangement. Often, this would mean arrangements such as reducing working hours, shifting existing working hours, working compressed hours or a change of working location.

There is a strict legal framework surrounding how an employer must deal with requests and the rights that employees have.

These include:

1. Employees can make up to two requests in any 12-month period;
2. An employer must make a decision within three months of receipt of the request;
3. Employers must meet with the employee if it is anticipated that the request will be refused;
4. There is no requirement for the employee to explain the impact approval of the request will have on the business; and
5. An employer can only refuse a claim for one of eight reasons:
   1. the burden of additional costs
   2. an inability to reorganise work amongst existing staff
   3. an inability to recruit additional staff
   4. a detrimental impact on quality
   5. a detrimental impact on performance
   6. a detrimental effect on ability to meet customer demand
   7. insufficient work available for the periods the employee proposes to work
   8. planned structural changes to the employer's business
6. there is no statutory right of appeal however ACAS considers this to be good practice.

Conclusion: Protecting your business and supporting pregnant employees

Overall, pregnant employees and those returning from maternity leave are well protected in law and therefore there are a number of pitfalls which employers can fall into and thus opening themselves up to the risk of unfair dismissal or pregnancy and maternity discrimination.

Employers should take specialist legal advice, particularly when planning redundancies, to avoid costly mistakes.

If you need clear, practical guidance on handling pregnancy, maternity leave or redundancy issues, our Employment Law team can help. Contact us today for tailored advice.

The information provided in this article is provided for general information purposes only, and does not provide definitive advice. It does not amount to legal or other professional advice and so you should not rely on any information contained here as if it were such advice.

Wright Hassall does not accept any responsibility for any loss which may arise from reliance on any information published here. Definitive advice can only be given with full knowledge of all relevant facts. If you need such advice please contact a member of our professional staff.

The information published across our Knowledge Base is correct at the time of going to press.