Maternity leave is an important period for all working mums. It gives women an opportunity to prepare for the birth, then care for the child during the first days, weeks, and months of its life.
Having recently returned from maternity leave herself, Amy Judge takes a look at what rights you have when it comes to taking maternity leave. Amy is a key member of our Commercial & Disputes Resolution and we are delighted to welcome her back to our Sevenoaks office following a period of maternity leave with her second Son, Freddie.
Who is eligible for maternity leave?
All employees, regardless of length of service, are entitled to both ordinary and additional maternity leave. Agency workers, casual workers and other workers are not eligible for maternity leave. Broadly speaking, if you are on the payroll or your employer controls when and how you work and provides you with tools and equipment, you are an employee and therefore eligible for maternity leave.
In contrast, if you are working under a contract to provide a service, are in charge of your own hours or pay tax and national insurance on a self-employed basis, you are likely to be classified as either a worker or as self-employed, and you will not be eligible for maternity leave.
What are your rights?
Employees may take up to 52 weeks of maternity leave. All employees have to take a minimum of 2 weeks’ leave following the birth of their baby, and for those employees working in a factory setting, the minimum period of leave is 4 weeks.
The leave can start at any time from 11 weeks before the week the baby is due. You have the right to determine when you want to start the leave, subject to providing the requisite period of notice. In certain circumstances, such as the baby arriving early or you falling ill within four weeks of the due date, you can start maternity leave early.
Despite common misconceptions, you can be made redundant whilst on maternity leave. However, a woman on maternity leave must be offered a suitable alternative vacancy, if one exists, as soon as her post is at risk of redundancy.
When are you entitled to maternity leave?
In order to qualify for maternity leave, you need to give notice to your employer at least 15 weeks before the week that you expect your baby to be born. The notice must state that you are pregnant, the week that your baby is due and the week you intend to start your maternity leave. All of this should be submitted in writing and some employers will request proof of pregnancy, which can be provided in the form of a medical certificate. The start and end dates for your maternity leave can be changed at a later time, though you will need to give advance notice of these changes.
What happens if you are refused maternity leave?
It is rare that an employer will refuse maternity leave if you have followed the correct procedures, notified them within the proper timeframe, and provided evidence of your pregnancy. If they do refuse you maternity leave, they may be guilty of maternity discrimination. You will need to ask them to justify their decision, preferably in writing, and then you should contact legal advisors as soon as possible. Your trade union may also be able to help.
Other considerations
It is important to note that maternity leave and maternity pay are two different things, for which there are two different sets of rules and rights. Likewise, parental leave and shared parental leave are two processes that often interact with maternity leave, but are separate and distinct processes. Finally committing every step of the maternity leave process to paper cannot be understated. This will ensure that there is no space for confusion or exploitation further down the line.
Amy regularly advises businesses and individuals on a broad range of litigation matters. Her practice includes contractual disputes, debt recovery and enforcement, contentious probate, employment disputes, but with a particular focus on residential and commercial landlord and tenant disputes and property disputes, including but not limited to, issues with neighbours, boundaries, rights of way, party walls and adverse possession.
Amy understands that clients are often perturbed by the costs involved in embarking on legal proceedings and offers initial advice at a Fixed Fee interview, at a cost of £100 plus VAT, for a 1 hour meeting. Amy and her colleagues can also offer fixed costs schemes in pursuing or defending a small claim, debt recovery for businesses, and for landlords in residential possession proceedings. Please do not hesitate to contact Amy for further information on 01732 460 565 or by email at ajudge@berryandlamberts.co.uk
The contents of this article are for the purposes of general awareness only. They do not purport to constitute legal or professional advice. The law may have changed since this article was published. Readers should not act on the basis of the information included and should take appropriate professional advice upon their own particular circumstances.
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