This post examines a woman’s right to take statutory maternity leave, problems that may arise should she attempt to exercise this right, and how such problems should be approached.
- Your right to maternity leave
- Potential problems
- What you can do
Your right to maternity leave
The right for women to take maternity leave is mainly contained within the Maternity and Parental Leave etc Regulations 1999. This is supplemented by a variety of rights contained within the Employment Rights Act 1996, such as the right to claim unfair dismissal (or automatic unfair dismissal) should a woman who is also an employee be sacked because of her exercising her entitlement to maternity leave.
All women who are employees have the right to take up to 52 weeks of statutory maternity leave, regardless of their length of service in employment. Thus, a woman who commences employment on 1 June 2012 could technically take maternity leave until the beginning of June 2013. The first 26 weeks of maternity leave is composed of “Ordinary Maternity Leave”, which envelops a two-week period of compulsory maternity leave after childbirth. Once the right to “Ordinary Maternity Leave” has been exhausted the woman can then utilise a further 26 week period of “Additional Maternity Leave”, should she wish to. Should the woman wish to exercise either right she must inform her employer. To exercise her right to Ordinary Maternity Leave the woman must notify her employer (in writing, if required) not less than 15 weeks before she expects to start the leave (such as the date on which she expects to be immobilised because of the pregnancy, the date of childbirth, or any other date). She must also (if required) produce to her employer a certificate stating the expected week of her childbirth. This is a normal request by employers. To exercise her right to Additional Maternity Leave the woman must notify her employer in the same manner as with her application to exercise her right to Ordinary Maternity Leave.
Requests by employees to take maternity leave sometimes do cause problems for employers. Although the right to take maternity leave is a statutory right employers sometimes view the entitlements as an unnecessary burden as the woman will be absent for up to (potentially) 52 weeks, 39 weeks of which (depending on the circumstances) they may be entitled to receive statutory maternity pay for. Employers may therefore attempt to:
- Refuse you the right to take maternity leave
- Dismiss you before you take maternity leave or whilst you’re on maternity leave
- Subject you to another form of detriment because you’ve taken maternity leave
Should you be refused the right to take maternity leave (but not dismissed) this is certainly grounds for a claim to the Employment Tribunal for constructive dismissal and discrimination. How you wish to approach the problem will depend on the facts of the particular circumstances (such as the nature of your employer, your position etc.) but a flat-out refusal to allow you to take maternity leave is certainly unlawful (should you qualify for the right to take maternity leave).
What you can do
If you’re dismissed because you’ve taken maternity leave or propose to take maternity leave then you may have a claim for unfair dismissal and discrimination (among other potential claims). Whether you’re able to pursue your employer for unfair dismissal depends upon whether you possess the requisite period of continuous employment and your employment status (you can’t claim for unfair dismissal if you’re not an employee). However, the fact that you’re an employee will often be a formality – you have, after all, requested to take maternity leave; a right that is only available to women who are employees.
If you’re subjected to any other detriment because of your exercise of your right to take maternity leave (such as, for example, a demotion or a change to your terms and conditions of employment) then you may be able to claim for discrimination (among other potential claims) in the Employment Tribunal.
However, before submitting a claim to the Employment Tribunal you should, if possible, attempt to resolve the situation with your employer through more informal processes. If possible arrange a meeting with a responsible person at your employer. Explain your position to them, the fact that you think your rights are being violated, and what potential actions you may be forced to take should your employer continue to act in breach of its statutory duty. If it isn’t possible to arrange a meeting then write a letter or give your employer a call. It’s always worth trying to sort out the issue informally prior to litigation.
Should the more “informal” means of resolving the conflict fail then you should seek advice from an expert employment lawyer to assess your situation and the probability of success of any claim to the Employment Tribunal. Many solicitors now offer no win no fee agreements and conduct free risk assessments. Use the forms on this page to request an assessment of your matter or click here to request a call-back.