Interview of the week: Joanna Robson from Babylaw
Gurgle: Joanna, most women are probably afraid of how much it might cost them if they go down the legal route?
Joanna: Lots of women that contact me are worried about how much things are going to cost, especially as they are, in some cases, looking at the prospect of losing their jobs. My firm offers an initial consultation for free to see if it is a suitable case and to ascertain whether I can help. Some law firms, including ourselves, offer a “No Win, No Fee” funding arrangement (like in the adverts) where you pay the solicitor a percentage of what you win. The other option is to check whether you have legal expenses insurance or family legal protection under your home contents insurance (lots of people do have it), which covers your employment claim for up to £25,000 in legal fees. The great thing about this insurance is that it doesn’t usually affect your contents insurance renewal premium as it is not regarded as a claim; in most cases, your contents insurance won’t go up if you use it.
Gurgle: So, when do we legally have to tell work that we’re pregnant?
Joanna: You have to inform your employer that you are pregnant by week 25 of your pregnancy. You can get your Mat B1 form from your midwife at your 20 week scan, however, some women will have to tell their employers earlier than this if their bump starts to show or they have to miss work because of a pregnancy related illness. I always advise women to tell their employers after they have had their 12 week scan, because then you are protected from risks in the workplace due to the fact that your employer, upon notification of your pregnancy, is under a duty to carry out a risk assessment to identify and eliminate risks from your working day. As a result of this, you should not be expected to do any heavy lifting or be exposed to anything which may be regarded as a risk to you or your unborn child. If your employer doesn’t know you are pregnant, it becomes more difficult to eliminate you from such risks.
Gurgle: When can we take maternity leave from?
Joanna: You are entitled to 52 weeks’ continuous maternity leave, which may commence no earlier than your 29th week of pregnancy and no later than the birth date of your baby. You are under no legal obligation to tell your employer how much maternity leave you are planning to take and your employer should assume that you are planning to take the full 52 week period unless you have indicated otherwise. You have to tell your employer the date that you intend to leave so that your employer has adequate time to find maternity cover for you. Your maternity leave start date can also be triggered during the last four weeks’ leading up to your expected week of childbirth in the event that you take time off work due to ill health.
Gurgle: What about annual leave – when should I take it and how much am I allowed?
Joanna: Your annual leave will continue to accrue during your maternity leave. The rate of the accrued annual leave will depend on whether you are on ordinary maternity leave or additional maternity leave. You are entitled to accrue contractual annual leave for the first 26 weeks’ of maternity leave and you are then entitled to accrue statutory minimum annual leave for the remaining 26 weeks. It is prudent to check which period your employers’ holiday year calendar runs from and to, so you can ascertain whether there is a carry-over facility for unused holiday from one holiday year to another. If not, you must ensure that you take your annual leave for the current holiday year prior to the commencement of your maternity leave, especially if your period of maternity leave is overlapping the employers’ holiday year, otherwise you may lose your entitlement as a result of the current holiday year lapsing whilst you are on maternity leave. You cannot take annual leave half-way through your maternity leave as this will be constituted as remuneration which will trigger a stop to any further payment or entitlement to maternity pay or leave. Remember, you accrue holiday whilst on maternity leave and some women choose to tag this onto the end of their maternity leave. However, you should seek your employers’ approval to the taking of any paid holiday leave on this basis.
Gurgle: What are keeping in touch days?
Joanna: The current employment legislation gives rise to an entitlement to be paid for up to ten keeping in touch days whilst you are on maternity leave. Such days are useful where you need to go into the office for meetings, training or just keeping up to date with what is going on at work. In addition, you are entitled to be paid for these days and it won’t affect your SMP entitlement. You cannot be forced by your employer to attend the office during your maternity leave as the keeping in touch days are there for your benefit, if you wish to use them. You don’t need to use these days to ensure that you are being kept notified of any business changes in the office, re structuring or promotions whilst you are on your maternity leave either as your employer is under a continuing duty to keep you notified of these anyway.
Gurgle: Ahhh, promotions. What if I have been overlooked for a promotion while on maternity leave?
Joanna: You have a right to be treated no less favourably whilst on maternity leave when compared to your colleagues who remain working in the office. The same principle applies to promotions. In the event that a promotion came up which was suitable to your skills and career progression, your employer should notify you so that you can apply for it whilst you are on maternity leave. If you can establish that you were not either afforded the opportunity of applying for a promotion or were not given a promotion because of your maternity leave status, then this may constitute an act of sex discrimination. Of course the promotion shouldn’t automatically go to the women with maternity status, it must go to the person who best meets the job requirements. However, your employer must make sure you have the opportunity to apply or be interviewed for the promotion whilst you are on maternity leave so that you can, at least, be considered.
Gurgle: In the current financial climate we are expecting quite a few redundancies – where do pregnant women or women on maternity pay stand?
Joanna: In a recent case of mine, one employer’s selection criteria matrix created for the purposes of redundancy included performance, skill set and absenteeism. Since my client had taken 32 weeks maternity leave she was selected for redundancy as a result of scoring the lowest in the selection pool due to her level of absence over the past twelve months’, which had included her 32 weeks’ maternity leave. This discriminatory conduct is strictly prohibited in the eyes of the law but it shows what some employers may try and get away with it. You can be made redundant in certain circumstances whilst on maternity leave, but there is added protection for those returning to work from maternity leave, in that they should be offered, whenever possible, suitable alternative employment. If your employer fails to take such steps, you may have grounds to complain.
Gurgle: What about temporary workers or those who are freelance?
Joanna: Businesses and employers alike are under a common law duty to ensure that they exercise a duty of care over the safety of their employees, workers, visitors and customers. Whatever your employment status in your place of work, the business must make sure that you are not exposed to unnecessary health and safety risks. If no employment relationship is established between you and the business i.e you are genuinely self-employed or a temporary worker, you wouldn’t be entitled to maternity pay from the business but you may be entitled to maternity allowance from the government.
Gurgle: What if my job has changed once I get back to work?
Joanna: The current legislation states that you are entitled to return to your same job which you were carrying out immediately prior to your maternity leave at the end of your SMP period. Your employer is under a legal obligation to keep your job open for the entire 52 week period, this being the maximum entitlement to maternity leave. It is not acceptable or lawful for your job to be taken over by a replacement permanent employee therefore not giving you the opportunity to return to your job. You may also wish to consider returning to your old job on a flexible working basis. You must make your request in writing to your employer and give them at least 28 days in which to respond. An employer is entitled to refuse your request to return to work on a flexible working basis if there are objective business reasons for their refusal. If the request is refused, you should be given the opportunity to appeal against the decision. You may have a case to challenge the reasons for your employer’s refusal in the event that you can provide comparators of other similar roles being allowed to return to work on a flexible working basis in your employer’s business.
Gurgle: So, in a nutshell, when should pregnant women, or women on maternity leave seek legal advice…?
Joanna: If you believe you have been receiving less favourable treatment at work because you are pregnant or on maternity leave, whether it be your employer’s general attitude towards you at work, failure to consider you for a promotion or unfairly selecting you for redundancy, to name but a few, you may be able to take things further. In the event that you do believe you are receiving less favourable treatment either since the announcement of your pregnancy, during your maternity leave or your pending return from maternity leave, you should seek legal advice without delay because there are stringent time limitations which you must comply with in order to bring a claim. In all tribunal proceedings, a claim must be lodged with the Tribunal within 3 months’ of the last act of less favourable treatment complained of. You should seek the advice of a legal expert without delay to ensure that your rights are protected.
Our solicitors’ at Babylaw™ are happy to assist and we even offer an out of hours service as we appreciate it can be difficult to talk things through either during the working day and/or when you are looking after a new baby at home. Babylaw™ offers a free 30 minute consultation either by telephone, face to face or by email so that you can weigh up your options before taking the plunge in issuing proceedings against your employer for their mistreatment of you. Our contact details are available on our website, www.babylaw.co.uk
Joanna Robson
Founder and Principal Solicitor, Babylaw™
Last Modified:
Mothercare
ELC
