Employment Law Advice Birmingham Law Solicitors Birmingham

Maternity rights are governed by various legislation, in particular the Maternity and Parental Leave etc., Regulations 1999.

One of the most important rights relates to dismissal and states that if an employee is dismissed due to pregnancy or a reason connected with it then the dismissal is automatically unfair. This means that the normal one years' service required for unfair dismissal claims is not needed. Furthermore, before the employee can be suspended and dismissed the employer must consider whether there is alternative work for the employee to do. If there is work but it is not offered to the employee she is entitled to make a claim.

Another key right relates to maternity leave. To exercise this right an employee must notify her employer, no later than the end of the 15th week before her expected week of childbirth, of her pregnancy, her expected week of childbirth and the date on which she intends to start her maternity leave.

The employee is entitled to 26 weeks' 'ordinary' maternity leave. Employees with 26 weeks' continuous service by the start of the 14th week before the expected week of birth are also entitled to a period of 26 weeks 'additional' maternity leave. This starts automatically the day after the end of the ordinary maternity leave period.

The employee can choose when her maternity leave starts, provided it is not earlier than the beginning of the 11th week before the expected week of childbirth.

No notice needs to be given by an employee intending to return to work at the end of ordinary maternity leave or additional maternity leave. However, if the employee wishes to return before the end of her ordinary or additional maternity leave, she must give the employer 28 days' notice in writing that she intends to do so.

In addition, during ordinary maternity leave the employer can write to the employee 21 days before the end of the leave to confirm the child's date of birth and enquire when the employee intends to return to work, i.e. at the end of ordinary maternity leave or at the end of additional maternity leave. The letter must explain how to work out when the additional maternity leave will end and what will happen if she does not respond to the letter within the required time period of 21 days from receipt.

As well as ordinary and additional maternity leave, the law also provides for compulsory maternity leave of 2 weeks (4 weeks for factory workers) for all employed mothers. An employer who allows a woman to work during a compulsory maternity leave period commits a criminal offence. Compulsory maternity leave is normally part of ordinary maternity leave so can generally be disregarded.

There is also a right to Statutory Maternity Pay during maternity leave. To qualify for this right the employee must have:

worked for the employer for at least 26 weeks up to and including the 15th week before the expected week of childbirth;

become pregnant and have reached or been confined before reaching the start of the 11th week before the expected week of childbirth;

ceased working for her employer;

average weekly earnings for the 8 weeks up to and including the 15th week before the expected week of childbirth, equal to at least the lower earnings limit for the payment of primary class 1 national insurance contributions;

given 28 days' notice to her employer of the date when she expects its liability for statutory maternity pay to begin;

produced medical evidence of the pregnancy and the expected week of childbirth.

Providing an employee satisfies the above, then for the first six weeks of such leave the employee is entitled to 90% of her normal weekly pay. For the remaining 20 weeks, the employee is entitled to a minimum of £100 per week.

Finally, women are also protected from any unfair treatment at work because of their pregnancy or childbirth or their wish to take maternity leave.

There has been a recent development in maternity law in the form of the Maternity and Parental Leave etc., and the Paternity and Adoption Leave (Amendment) Regulations 2006. This new piece of legislation only affects employees whose expected week of childbirth begins on or after the 1st April 2007.