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Make the right calls over pregnancy

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Make the right calls over pregnancy

Most employers know their obligations towards pregnant women. But for women, there’s the worry that they may be disadvantaged by virtue of expecting or trying for a child, say Paula Chan and Emily Plosker. 

The law does not require an employee to tell their employer they are pregnant until the 15th week before the week the baby is due. It is recommended that the employer is told early as it is only once they have knowledge of a pregnancy that an employee is protected by law.

Notably, there is no protection against pregnancy discrimination unless an employee is pregnant, but they may have a claim for sex discrimination if they are treated less favourably because they are planning a pregnancy or undergoing fertility treatment. A pregnant woman has a number of rights.

Antenatal appointments

A pregnant employee will normally be asked to attend an antenatal appointment around eight weeks into the pregnancy, with scans at around 12 and 20 weeks. After the first appointment, the employee will need to show their employer evidence of their pregnancy (the MAT B1 form) and their appointment card (if requested).

“Where work could cause a special risk to a pregnant employee, employers have a legal duty to assess workplace risks”

Pregnant employees and agency workers have the right to paid time off to attend these appointments; certain employees and workers also have the right to take unpaid time off to accompany a woman to an appointment.

Employers are only able to refuse time off where it is reasonable to do so. Interestingly, there is no guidance in legislation or case law detailing what is ‘reasonable’.

Pregnancy risk assessments

It is a legal requirement for all workplace risk assessments to include risks to female workers of childbearing age, even if there are no pregnant employees at the time of the assessment. Once an employer has been told about a pregnancy, they should immediately check their existing workplace risk assessment to ensure it is still valid and does not require changes.

Where work could cause a special risk to a pregnant employee, employers have a legal duty to assess workplace risks to new or expectant mothers or their babies; alter the employee’s working conditions or hours of work to avoid any significant risk, or offer suitable alternative work on the same terms. If there is nothing suitable, they must suspend the employee on full pay.


While it is unlawful for an employer to make a woman redundant because they are pregnant, they can be dismissed if they are genuinely so (redundant). If a woman is made redundant because they are pregnant, they will have potential Employment Tribunal claims, including a claim for automatic unfair dismissal and pregnancy discrimination. A successful claim can mean an uncapped compensation award.

Women selected for redundancy whilst on maternity leave have the right of first refusal to any suitable alternative vacancies, without any competitive process or the need to attend an interview.

Maternity leave and pay

When expectant mothers start their maternity leave is generally a matter of personal choice, but they cannot start it earlier than the 11th week before the expected week of birth. There are two exceptions. If a woman is absent from work for a pregnancy-related reason after the fourth week before the expected week of childbirth, but before the planned start date for maternity leave, the leave will begin automatically on the day after the first day of absence. If the baby is born early, the maternity leave will start the day after the baby is born.

Employees are entitled to up to 52 weeks’ maternity leave – the first 26 weeks being ‘Ordinary Maternity Leave’ and the second ‘Additional Maternity Leave’. Employees continue to accrue paid holiday; some choose to add this to the end of their maternity leave. Employees may also be entitled to exchange up to 50 weeks of their maternity leave for shared parental leave.

Employees with at least one year’s service are also entitled to up to 18 weeks’ unpaid leave for each child up to the age of 18, for the purposes of caring for that child. Employees maintain certain contractual rights during that time and have the right to return to the same or a suitable alternative job.

Employees with 26 weeks’ continuous service when they reach the end of the 15th week before the expected week of childbirth are entitled to Statutory Maternity Pay, set at 90 per cent of the average weekly earnings (before tax) for six weeks, then £156.66 or 90 per cent of average weekly earnings (whichever is lower) for the next 33 weeks. An employee may also have an entitlement to enhanced company maternity pay.

The self-employed may be able to receive between £27 and £156.66 a week for 39 weeks, depending on how many Class 2 National Insurance contributions they have made in the 66 weeks before the baby is due.

Discrimination at work

If an employee complains of discriminatory behaviour and it cannot be resolved privately, they’ll have to raise a formal grievance. This will put the complaint on the record and require the employer to act. It will also protect the employee from any retaliatory treatment going forward. The process requires notification to ACAS along with the submission of an ACAS early conciliation form.

Paula Chan is a partner and Emily Plosker managing associate at employment law firm Brahams Dutt Badrick French LLP

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