Working Parents Employment Law: Does it Need an Overhaul?

By Jayne Harrison

There has been an on-going struggle to pass laws that offer legal protection to pregnant working women. More and more people have been advocating for more support on this certain issue. In this article, the author highlights certain aspects revolving around pregnancy rights, namely: maternity leave, paternity leave, and parental leave.

Business Minister Kelly Tolhurst revealed plans to increase the legal protection for pregnant women against redundancy to cover up to 2 years.

This new policy would support working mothers for an extra 6-month extension when returning to the workplace. The news came after Government consultations uncovered results of continued unfair discrimination of new parents by their employers.

According to the BEIS (Department for Business, Energy and Industrial Strategy), one in nine women have been made redundant, fired or forced out of their job when they returned to work after having a child. Demonstrating the injustice some women face in the workplace, this highlights that the fight against maternity discrimination is far from over.

Figures by Workplace Insight only further the case for added protection for working parents rights. They show that since 2018, the number of women fired on maternity leave has increased by 70%. The use of gagging orders for maternity-related disputes has also risen, displaying a trend of worsening employment discrimination against working women.

So, whilst not every working parent returning to work faces discrimination, increasing figures suggest the measures in place for these employees is lacking. This treatment is illegal in the UK, therefore employees who believe they are facing discrimination are entitled to bring a claim. To help you in understanding the regulations for maternity and paternity leave, this article breaks down the employment rights of working parents.

What are pregnancy rights?

Once a woman has informed her employer of her pregnancy, she is legally protected against discrimination on the grounds of pregnancy and maternity leave. To be eligible for this, the employer must be notified of the pregnancy at least 15 weeks before the baby is due. Employers are legally
entitled to request written notice from their staff, a detail which varies depending on the company being discussed. Following this, the employer must respond to the notice within 28 days of receiving it from their
pregnant employee.

After the notified period has begun, reasonable action must be taken to protect both the mother and baby from harm in the workplace. In most firms, a risk assessment must take place to assess issues such as:

• Long working hours
• Carrying/lifting heavy objects
• Potential toxic substance exposure
• Standing/sitting for long periods without breaks

If workplace risks do exist, employers must either change the working conditions for their employee, offer them different conditions with the same pay/benefits, or allow their employee to stay at home with full pay. Women are also fully entitled to request allowances for health, safety and/or sickness issues. For example, taking paid time off for antenatal appointments. Employees can choose to take their appointments outside of working hours but do also have the right to be excused from work with full pay to attend. Employers who do not abide by these rules may be displaying maternity discrimination. In which case, employees are advised to seek legal assistance. 

How long is maternity leave?

Legally, women must take 2 weeks of leave following the birth of their child. For factory workers, this period increases to 4 weeks. Women have the right to take 52 weeks of statutory maternity leave in total. However, this is not obligatory. The first 26 weeks of maternity leave is labelled as ordinary maternity leave and the second 26 weeks additional maternity leave. Whilst most women often choose to return to work after their full leave, 1/3 do not return at all after their maternity period.

Returning to work after taking 26-weeks ordinary maternity leave ensures women will return to the exact role they left from. This job must be with the same conditions, title and salary that the employee was expecting. If an employee instead chooses to return after this 26 week period, perhaps after taking additional maternity leave, they face slightly different rules. Employees who return to work after the 26^th week of their maternity leave may not be offered the exact role they left from. They must legally be offered a job with the same conditions and salary to their previous job, but they are no longer entitled to their exact role
pre-maternity leave.

Returning to work after maternity leave

It is not uncommon for women to receive unfavourable treatment after returning to work. These issues can include:

• Reduced pay or hours without notification
• Dismissal or redundancy
• Being sidelined for promotions
• Role demotion or major adaptation
• Negative comments for flexible working

Employers acting in a discriminatory manner such as the above are acting unlawfully, therefore any signs of this behaviour should be reported to HR or an employment tribunal. Firms hold a duty to manage maternity returners with care, making sure to ease the stress women face with transitioning back to work. In fact, policies such as flexible working, reduced hours, and working from home are in place to ensure employees are comfortable with their return. Employers can also offer extra breaks for women to express milk, a measure in place to facilitate the continued care of the baby and mother. Although an employer may not offer these exact policies, their care plan should ensure the employee is not facing discomfort from the role which could easily be resolved.

Sharing parental leave

A fairly new phenomenon, shared parental leave allows couples to have more flexible child-care arrangements. The policy rules that up to 50 weeks’ leave and 37 weeks’ pay can be shared between partners, as long as it is used before the baby is one year old. Shared parental leave can be used all in one go, or in blocks of leave which are separated by periods of working.

Parents have the option to stagger their leave or be off work together, depending on their personal preferences. As the maternity leave is shortened to accommodate the partner sharing this time, there are no set rules as to how it is taken. However, a flat pay rate is offered of 90% of earnings or £148.68 (depending on which is lower). This pay lasts for 37 weeks.

Taking paternity leave

Paternity rights are given to those who are either the biological father responsible for raising the child or the spouse/partner of the mother (but not the father of the child) who has the main responsibility (apart from any responsibility of the mother) for the upbringing of the child. To receive parental rights, you should also have worked for your employer for at least 26 weeks continually by the end of the 15th week before the baby is due. Without fulfilling these criteria, an employee would not be eligible to receive paternity rights. But in an instance you qualify and still do not have an access to court-ordered paternity rights, you can hire a reputable paternity lawyer.

Paternity rights give employees the option for one or two consecutive weeks off work, which they can book to begin no earlier than the baby’s due date period. The employee is, then, not permitted to physically begin their paternity leave until the day the baby is born. This means their employer must exercise flexibility in arranging cover for their leave which may begin suddenly. Employees completing paternity leave have a limit of 56 days from their child’s birth date to complete their paternity days, after which time they must return to work or discuss annual leave with their employer.

Following this period of leave, the employee is entitled to return to the same job from which they departed. The conditions and pay of their role should not have been changed without previous discussions and they should not face discrimination of any kind from their employer. If you feel you have experienced discrimination in the workplace as a result of your paternity leave, you should first discuss this with HR or your employer to see if a resolution can be
reached. If an amicable result does not arise, you should seek legal assistance for your case.

Conclusion

Rising discrimination toward working parents suggests the current measures in place to protect those on maternity and paternity leave are not entirely sufficient. With a 70% increase in women forced out of their roles since 2018, the new regulations are being welcomed with both arms by employees. These new provisions should support women who feel pushed out and guide employers in how they should deal with employees taking maternity leave.

If you feel you have been discriminated against by your employer as a working parent, it is important you are aware of your rights. This injustice can take many forms, whether it is being sidelined for a promotion, receiving nasty comments for taking leave, or even being fired after announcing your pregnancy. If your employer has treated you in any of the ways discussed in this article, they have been acting in a discriminatory manner and you can fight back against this. With the law on your side, you can raise any uncertainty with your HR department and try to resolve the matter amicably. If this does not work, you should reach out to legal support as soon as possible, in order for your case to stand the best chance of success.

About the Author

Jayne Harrison is Partner and Head of Employment Law at Richard Nelson LLP.