As I return to my office this week after my second (and very definitely final) period of maternity leave, my thoughts turn to employers who may be getting a little more than they bargained for when they welcome employees back after maternity leave.
There is as we know a growing tendency for women to start and complete their families later in life and within a relatively short space of time (particularly professional women with relatively high incomes compared with the national average). Couple that with the entitlement to take 52 weeks of maternity leave regardless of length of service, not to mention annual leave and parental leave in conjunction therewith, and thus exist prime conditions for employees to become pregnant whilst still on maternity leave.
Businesses may feel that there is no particularly good time for an employee to have a subsequent child, and some employers take exception to the woman who returns to work pregnant or even who manages to begin the subsequent maternity leave without returning from the initial period. But whatever her reasons for having her children close together, the employer has no choice but to treat her in the same way as it would (or should at any rate) any other pregnant employee. Indeed, any unfavourable treatment could amount to pregnancy and maternity discrimination under section 18 of the Equality Act 2010.
So what are the additional legal and practical considerations for an employer in a case where an employee becomes pregnant whilst on maternity leave?
The notification requirements concerning the fact of the pregnancy and intended dates for maternity leave are no different. The woman must give notice no later than the 15th week before the Expected Week of Childbirth (“EWC”) (or as soon as reasonably practicable). Whereas many women are obviously pregnant by this point in their pregnancy which would be apparent to their employer where they are at work even if they leave it until the last minute to notify, a woman who is absent from the workplace on maternity leave may have more success at hiding the fact of the pregnancy!
The interim period
The new period of maternity leave cannot start sooner than the 11th week before the EWC. If this means that the employee will only be back at work for a matter of weeks between periods of maternity leave, the employer may be able to agree revised duties with her for those few weeks to leave the existing maternity cover arrangements in place and minimise disruption to the business. However, the employer must keep in mind that her entitlement is effectively to return to her old job* (notwithstanding the fact that it will only be for a short period) and it will be necessary to proceed with caution if a temporary alternative is to be proposed.
For statutory maternity pay (“SMP”) purposes, the SMP received during the current maternity leave will count as “earnings” for the purposes of calculating SMP for the subsequent period of maternity leave. But the average earnings for the calculation period must exceed the Lower Earnings Limit (for National Insurance purposes) of £107 per week. As SMP itself is £135.45 per week, provided the calculation period occurs whilst SMP is being paid, then the woman will qualify for SMP in the subsequent period. However, if the calculation period falls partially or wholly in the unpaid portion of Additional Maternity Leave (i.e. the last 13 weeks) then the woman may not clear the Lower Earnings Limit and may get no SMP for the subsequent period.
If the woman wants to return to work earlier than planned from the current maternity leave in order to boost her earnings for maternity pay calculation purposes, then she would need to give the requisite 8 weeks’ notice to return early.
Contractual maternity pay will be a matter of contract between the employer and employee. If the employer’s practice is to pay enhanced maternity pay to employees provided they return to work for a certain period after maternity leave, consider whether the employee has sufficient time available between periods of maternity leave to satisfy the requirement. If not, and the contract is silent, the employer could give the employee the opportunity to put in the remaining time required on return from the subsequent maternity leave period in order to avoid an unduly harsh result.
The employer will need to continue to communicate with the employee and consider what if any training she may need whilst on the subsequent period of maternity leave to ensure that her ultimate return to work is successful. She may have been out of the workplace for over 2 years by the time she eventually returns and it will be in all parties’ interests to re-integrate her quickly and smoothly.
*Experienced employment lawyers will I hope forgive me for the lack of distinction between returning during or at the end of OML and AML in this regard