Understanding, interpreting and complying with pregnancy and maternity rights in the workplace can be tricky. Employers face the challenge of managing business needs with the needs of mothers, fathers and anyone else with parenting responsibilities at a time which can be stressful and emotional. In this session we will look at the legal framework governing pregnancy and maternity rights, returning to work, redundancy, in vitro fertilisation (IVF) and surrogacy, Statutory Maternity Pay (SMP) and settlement agreements and finally potential reform.
In this webinar Anna Fletcher provides advice on managing these issues, highlight the pitfalls and offer practical tips.
Transcript
Jane Fielding: Good afternoon everybody I am Jane Fielding and I am head of the employment, labour and equalities team here at Gowling WLG here in the UK and I am delighted to welcome you to this webinar, which unfortunately we had to postpone from mid year due to Anna and I both having covid. Happily that has not hit this time so we are both here ready to go and the topic for today is managing the complexities of pregnancy and maternity rights.
We have had legislation in this area for many decades now but, judging by the frequency of questions that we get on this area it is not one that employers really fully feel confident with, and certainly in times of economic difficulty which we are sadly facing at the moment in the country these sorts of questions come up more. Poor behaviours and practices can slip in with some employers and that has a knock on effect even to employers trying to do the right thing.
So we thought it was very timely to have a refresher on the sort of pit falls of this, what the law actually says and best practices. So our speaker today is Anna Fletcher, one of the Legal Directors in our team and she is very well placed to cover this topic because she has been advising clients on it for many years now and is very expert in it.
So she is going to speak for about 35 minutes, we will have about ten minutes for questions before we finish at 1.45. If we do not get to your question, we will come back to you afterwards because usually we find we do not have time to do quite all of them. If you want to ask a question please can you use the Q&A function, which you will find on the zoom screen in the middle at the bottom. The chat function has been disabled so please use Q&A instead and you can also use that for any technical questions you have if you have problems, Lucy Strong who is our tech support today will do her best to sort you out but hopefully everything will run smoothly and that will not be needed.
At the end of the webinar, we will be sending out a short questionnaire by email to everybody who has attended for your feedback. It only takes a couple of minutes to fill in and we would be really grateful if you could take the time to do that so that we can see what you liked, what you would like more of and we can shape future sessions around that.
So I will now turn my video and camera off and hand over to Anna.
Anna Fletcher: Thanks Jane and welcome everybody to today's webinar. Just starting in terms of a broad overview of what I want to talk about today, I want to talk about why this is important. I also want to highlight the risk areas and these are areas we see come up time and time again, we are going to look at miscarriage, IVF and surrogacy, other strands that need to be dealt with sensitively as pregnancy and maternity and then finally to wrap up with a rise and scan of what is coming down the tracks.
So in terms of why is this important, well you would like to think that actually pregnancy and maternity discrimination was not as frequent as it actually is and unfortunately the surveys that have been carried out over the years demonstrate that we are not really moving much further forward.
So there was a survey carried out by the equality and human rights commission back in June 2017 and they found that 77% of mothers said they had been subjected to a negative and possibly a discriminatory experience during pregnancy, maternity leave and even after they returned from maternity leave. So wind forward five years and unfortunately only this month we saw a study from culture shift which reported that more than one in four expectant mothers felt reluctant to share their pregnancy news due to fear of stigma from their colleagues and also from managers, and in fact that figure rises to 46% of those who were surveyed where they had been in employment for less than 6 months when they became pregnant.
So I think it is a very sad reflection on why this continues to be an issue and an experience, which must be very difficult for people going about what should actually be a fantastic time for people in terms of having their children and building a family.
So again why is it important for your businesses to be aware of these risks, well pregnancy and maternity discrimination was the fifth most common form of discrimination claim in 2020/2021 and according to the various cases that are reported these were incidents involving things like sham redundancies, offensive comments to pregnant employees, failure to implement flexible working options and being overlooked for promotion. So the whole plethora for the employment lifecycle.
It is also important from a cost perspective and that is not just in terms of the cost of litigation but also the wider cost to your business, from recruitment through to retention, from managers having to deal with bad behaviour as Jane alluded to earlier, having to deal with formal grievances and really all those costs that can be quite difficult to quantify.
Many have the risk of adverse publicity, we know that the press is very interested in these sorts of cases and they appear frequently in all the press coverage and also of course, widely spread on social media. The other thing of course is that tribunal decisions are now published on the government website so actually you get to a situation where if your organisation were to be the subject of a search on that website, and you have been unfortunate enough to have had a decision that went against you then that would be really easy for somebody to have a look at and to read.
So just to recap now, we are moving on to the equality act because that is obviously, where all this legislation comes from so pregnancy and maternity is a protected characteristic in its own right and it protects women against discrimination. So when is a woman actually protected.
Protection applies during what is known as the protective period, no mystery in that, but basically that's the period from the point at which a woman announces that she is pregnant to the end of her additional maternity leave if she takes the full 52 weeks maternity leave or to the date when she returns to work after pregnancy and she comes back before the end of that full maternity leave. The protected period also applies where there is not a right to leave for a period of two weeks after the end of the pregnancy so that will apply in unfortunate circumstances where for example somebody has a miscarriage.
So looking in more detail at the claims that can be brought. We have a situation where claims can be brought for direct discrimination. Normally those claims are brought under section 13 of the equality act but there is a specific provision in section 18 of the equality act that dis-applies section 13, and that is because it provides what extra special protection for women in these circumstances, where during the protective period the woman experiences what is called unfavourable treatment because of pregnancy, pregnancy related illness, exercising or seeking to exercise or having exercised maternity leave rights.
So what can amount to unfavourable treatment? Well it can be unfavourable treatment, which is because of pregnancy or illness. It can also be unfavourable treatment for being on compulsory maternity leave or exercising those rights to take ordinary or additional maternity leave and the equality and human rights code of practice the employment tribunal will take into account gives some examples of what might constitute unfavourable treatment. Those will include failing to consult with a woman who is on maternity leave about changes to her work or about possible redundancy. It can include disciplining a woman for refusing to carry out due to pregnancy related risks, it can also include depriving a woman of her right to an annual appraisal or PDR because she was on maternity leave or excluding pregnant women from business trips.
So you can imagine there are a huge number of examples of unfavourable treatment, so pregnancy or being on maternity leave does not actually have to be the only reason for the unfavourable treatment. This means that a woman's pregnancy or maternity leave only leads to materially influence the employee's conscious or subconscious decision making for the unfavourable treatment to be discriminatory. Also we have to be very mindful about this not being time limited so the protection also applies in respect of decisions which were implemented after the protected period has ended but where the decision was made during the protected period.
So that might be for example around redundancy where a decision has been made, but not implemented until the woman has come back from maternity leave and the really interesting and very important factor to remember here is that we are not talking about less favourable treatment, we are talking about unfavourable treatment and that means that a woman seeking to exercise this right does not have to point to a comparator. So that is a very important consideration here. We also know that the protection extends to associated of direct sex discrimination and again the equality human rights commission code of practice anticipates that. It talks about that right arising where a worker is treated less favourably because of an association with a pregnant woman or a woman who has recently given birth or may and that person then may have a claim for sex discrimination.
So in terms of indirect discrimination and harassment, the protected characteristic of pregnancy and maternity discrimination does not actually apply in most situations. That does not mean that an employer can get off scott free in relation to indirect discrimination or harassment complaints. In those situations there will still be the prospect of the claim based on the grounds of sex rather than pregnancy or maternity leave and do not forget unfair dismissal. The maternity and parental leave regulations make it automatically unfair to dismiss a woman for a reason connected with her pregnancy or the fact that she had given birth or has taken maternity leave.
So it is really important when decisions are being made that if you have a situation where you have somebody who is pregnant or somebody who was on maternity leave that very careful thought is given to any decisions that are made that effect those employees.
So moving on to the next slide I want to look at risk areas, so this may well be what you want your managers to know and I suspect when you go about advising, some of the things I am about to say may resonate. So when it comes to recruitment the job applicant does not have to tell a prospective employer that she is pregnant during the recruitment process and it is also unlawful to withdraw a job offer on learning about a woman's pregnancy or dismiss her for non-disclosure at interview and sadly we do see those being challenged because managers sometimes feel that they have been duped by somebody but there is no positive obligation to disclose. Just like there is no positive obligation to disclose in relation to disability.
When it comes to promotion, it is unlawful not to promote an employee who is the best person for the job because she is pregnant or on maternity leave. So we know there is case law about this and that is the sort of thing that we will be reported in the press quite happily. So the same provisions relate to pay rises, so you cannot deprive an individual of a pay rise because she is pregnant, or because she has been on maternity leave, and again there was a case reported in the media this year and it appears on the government website that a construction firm, where the lady who was due to go on maternity leave, asked for a £2,000 pay rise that was rejected because she was due to go on maternity leave, she brought a claim, the claim succeeded and she was awarded £9,000. That goes back to the risk area that I was talking about earlier in relation to costs of the business.
Then there is the issue of poor performance. Any employee can be subject to performance management but it becomes particularly difficult where those issues and conversations arise during the course of a pregnancy. It can sometimes be really difficult to uncouple the impact of a pregnancy on somebody's performance so you need to be very mindful that if you are taking any action under a disciplinary or capability procedure, if the reason for that is the pregnancy then there is a significant risk of a claim.
Risk assessments and medical suspensions, as you know as an employer there is an obligation to have a general health and safety risk assessment in place for all your employees but that also includes considering the specific risks that might arise for employees or child bearing age. For example, those who could become pregnant, those who are pregnant, new mothers and specifically those who have given birth in the last six months and those who are breastfeeding and failure to implement risk assessments could be sex discrimination. There are specific risks for employees of child bearing age and in other guidance it talks about work related stress, things like lifting and carrying heavy objects and sitting or standing for long periods of time as well as things like exposure to toxic chemicals and radioactive materials and the general guidance on the health and safety executive website that covers this - was updated in March 2022, so a useful source of information if this is an area that is of concern.
So once you have carried out your risk assessment what then. If you identify that there are risks then obviously you need to think about steps that you need to take and that could include having to temporarily change the employees job if there is a more suitable job available for them. The thing to remember there is that in that situation the terms of the contract should not change so for example pay needs to remain the same and we had that confirmed quite a long time ago now in 2000 case that a claim brought against British Airways, it is an employment appeal tribunal decision, British Airways and Moore and in that case the employment appeal tribunal upheld the tribunal's finding that transferring a pregnant, and they were called air stewardesses at the time but cabin crew in today's language, to ground duties on the same basic pay and involved substantially less favourable terms and conditions because the employees in that case lost out on flying allowances which actually were really substantial about 25% of their overall pay.
So this suggests that the overall level of remuneration for alternative work should not be substantially less so if you have employees where you need to move them temporarily and they have for example variable compensation packages that are linked to specific performance duties in the original role, you will still need to take steps to ensure that there is no impact on them. So there may also be situations where you are unable to actually move somebody from a role which removed the risk that you have identified and in that situation the employer will be entitled to be suspended on full pay unless the risk can be removed or until maternity leave begins and in that situation maternity leave will begin automatically from four weeks before the baby is due.
So sickness at the end of maternity leave. In that particular case the employee is counted as being back at work so just as if they had returned physically to the workplace but in this situation unable to do so because of illness and it may not be pregnancy related illness it could be any illness. And in that situation the advice is that the absence when the individual was on maternity leave should not be counted because otherwise to count that period of leave in addition to sickness absence would amount to maternity discrimination.
Maternity, I will come back to that later but in a redundancy situation do not forget that where you have somebody on maternity leave, when you are looking at redundancy selection criteria you should not be discriminating against employees who are or have been pregnant who are on maternity leave.
So moving onto maternity pay and benefits. Again, a couple of tricky areas with some helpful case law to give us further clarity. So I am going to look firstly at childcare vouchers and then I am going to look at SMP statutory maternity pay. So when a woman goes on maternity leave the legislation makes it clear that her terms and conditions of employment continue to apply but that is with the exception of terms relating to remuneration.
So where you have a non-cash benefit like childcare vouchers what happens to those childcare vouchers. Well this decision in Peninsular Business Services and Donaldson gives some helpful guidance. If you provide childcare vouchers as a benefit in addition to salary then they must continue to be paid during maternity leave but where the vouchers are being provided by way of salary sacrifice they should be regarded as part of remuneration even though they are not a taxable benefit. So as a right to remuneration falls away during maternity leave an employer would be perfectly entitled not to continue to provide the benefit during maternity leave.
So what about statutory maternity pay and settlement agreements. This case of Campus Living Villages gives us again some helpful guidance here. In this particular case and it was a case that came before the tax tribunal and not the employment tribunal the case concerned an employee called Mrs Sexton, she was dismissed by reason of redundancy while she was pregnant. She brought a claim for unfair dismissal and pregnancy discrimination, which was compromised by way of a COT3 so in other words settled through ACAS rather than under the terms of the settlement agreement. The employer here agreed to pay her £60,000 in full and final settlement of all the claims arising from her contract of employment, a further £20,000 in respect of injury to feelings. HMRC took a look at this and to start with they said that the calculation of statutory maternity pay was wrong because she had been paid a bonus in what is called the relevant period which is the eight week period preceding the 14th week before the baby is due and that bonus should have been taken into account in calculating her average weekly earnings for the purposes of statutory maternity pay.
So there was already an issue there in terms of the actual calculation of statutory maternity pay in being wrong, but the tax tribunal also found that the social security contribution and benefits act provides an absolute right to statutory maternity pay so any agreement, which purports to contract out of that right, is void. It is quite different to the provisions of section 203 of the employment rights act. So if you are in a situation where you are looking to compromise or settle claims and you are looking at a settlement agreement or a COT3 and the individual has an entitlement to statutory maternity pay, it is really important to make sure that that entitlement is really clearly specified.
So what about nursing mothers because this is a situation where you will often be outside the protected period. The case of McFarlane and EasyJet is a salient lesson in how you should be dealing with flexible requests or flexible working requests in this area. So the claimants were both cabin crew employed by EasyJet and they wanted to continue breastfeeding when they returned to work. To facilitate that they asked for limits to be applied to the maximum duty that they were allocated, so they did not want to work for more than eight hours at a time and they asked in the alternative to be transferred to ground duties. EasyJet refused and that was considered to be in breach of its health and safety obligations. There was a claim brought for indirect sex discrimination and that claim succeeded on the basis that the shift pattern that was being applied placed women who wanted to breastfeed at a particular disadvantage and EasyJet were unable to objectively justify that requirement. So be aware of this sort of claim because although it will not be pregnancy or maternity discrimination because it falls outside the protective period it still amounts to a claim for sex discrimination.
So moving on to the next slide I wanted to look at the right to return to work and redundancy and this proves to be very tricky in many circumstances. So we have regulations for maternity and parental leave regulations that afford women the right to return to work in broad terms after maternity leave, but there is a distinction that is drawn depending on what sort of maternity leave they have taken. So if you have taken ordinary maternity leave then the right is to return to the job in which you were employed before your absence. If you are returning from additional maternity leave, so anything between 26 and 52 weeks of the maternity leave the right is to return to your own job or where that is not reasonably practicable for a reason other than redundancy to another job which is both suitable for the employer and appropriate for the employee to do in the circumstances. We do not see that happen very often, most often employees do return to the job that they were doing before they went on maternity leave.
When you are dealing with a redundancy situation you have to take great care around the application of regulation 10 because that provides an obligation to make an employee an offer of suitable alternative employment once she is redundant or at risk of redundancy so we know that it is automatically unfair for the purposes of the employment rights factor to dismiss a woman by reason of redundancy without complying with regulation 10. So when we look at regulation 10 what do we have to look at specifically, when does the obligation arise. In the case of Sefton Borough Council and Wainwright, the employment appeal tribunal held that the obligation under regulation 10 arose once a decision was taken to delete the claimant's job from the Council's structure. It did not arise as the Council was contending following a competitive interview process to decide which of two employees to slot into a new role because both their positions were redundant.
So as the employment appeal tribunal found the new role was a suitable alternative employment and therefore, Miss Wainwright was entitled to the offered the role and not required to attend a competitive interview to decide who was the best candidate for the post. The other case that helps with the interpretation of regulation 10 is this case of Simpson and Endsleigh Insurance. What regulation 10 says is that the new contract of employment basically has to provide for work to be done which is a kind which is both suitable in relation to the employee and appropriate for her to do in the circumstances, and it's provisions as to the capacity and place in which she is engaged and as to the other terms and conditions of her employment are not substantially less favourable to her.
So what does that actually mean in practice. Well in this particular case the employment appeal tribunal held that both elements of suitability had to be considered together so in other words the suitability of the work and also the suitability of the terms and conditions but will want the offer to decide if the role was suitable. And in this particular case the reason that it was not suitable, alternative employment was that the terms related to the location of work and it was a transfer from I think London to Cheltenham were not considered to be suitable.
So moving on to the issue of miscarriage and stillbirth. A very difficult situation for everybody involved to deal with and a situation where it is really incumbent on employers to be as sensitive as possible to the situation that the employer will find herself in and this is a really common form of pregnancy loss. It affects one in four pregnancies according to Tommy's the miscarriage awareness charity. So we are talking about the period before 24 weeks of pregnancy and the reason that that is important is there is no statutory protection in the sense there is not statutory right to take any leave at that point so not any form of paid leave, obviously not paternity leave, and it means that the father or parent will also not be entitled to any kind of statutory paternity leave and of course neither the mother, father or partner will qualify for parental bereavement leave.
So that means if somebody needed to take time off work, they will take time as sick if they are if they are unwell but other than that, it will be a case of taking your holiday or taking unpaid leave and that seems a situation that really does need to be reviewed. In New Zealand for example they now have a provision that has been in place since 2021 where there is a new bereavement leave that has been introduced to give people paid time off work and in Scotland within the Scottish public sector workforce there is now a right for parents who suffered miscarriage to take three days paid leave but that cannot be extended to the Scottish private sector because that is a matter that has to be devolved in Westminster and there is no UK government legislation on this.
So the SMP has been campaigning for paid leave to be provided as a right and there was a suggestion by the SMP that the government should really see the loss of a baby being recognised at any stage in pregnancy and in particular to provide at least three days of paid leave in the event of a miscarriage. The government announced in February this year that it had no intention of introducing bereavement leave following a miscarriage.
Anybody who has got organisations operating in Northern Ireland however, be aware that Northern Ireland is proposing to introduce statutory miscarriage leave before 6 April 2026. That means, of course you know, it is up to the employer, the employer can choose to introduce this type of protection and employers might decide to do that although, according to the CIPD only around 25% of employees did experience pregnancy or baby loss in the last five years receive any pay or compassionate leave from their employer.
We do know there are lots of organisations out there that have introduced their own policies, there are organisations like ASOS, Channel 4, Monzo, Cable & Cole amongst organisations also including Virgin Media who have announced last week that they were going to include up to ten days paid leave for pregnancy loss as well as up to 12 weeks neo-natal leave. We will come back to that in a moment. And of course after 24 weeks maternity rights kick in but obviously it is and it is really important for this to be dealt with really sensitively and I think that referring to maternity leave and maternity pay in those circumstances. You might want to be thinking about a different way of explaining that to employees.
I am going to move on now to look at fertility treatment and again there is no right to time off for treatment and treatment involves in the IVF process is, can be really lengthy with lots of different steps, lots of medical intervention, the need for plenty of appointments for various checks, various stages of that process and in some cases you might have employees not only needing to take time off to attend at the hospital appointment, you might also have situations where people cannot be treated locally so those hospital appointments become more time consuming. And also the medication that is used during the IVF process can have quite dramatic side effects so a situation where an open conversation is likely to be extremely supportive and helpful for an employee and as it is particularly difficult to predict and it can be an emotionally a very difficult time, even more important that employers seek to support their staff. Having said that the Fertility Matters At Work survey from 2020 suggest that about a third of people who were going through IVF at the point of the survey had considered leaving their jobs while 70% had had to take time off sick.
So it does appear that some flexibility is needed and again in the equality and human rights code of practice there is a recommendation that employers treat the request for time off IVF treatment really sympathetically and that employers have implemented suitable processes and procedures, which allow employees to ask for time off.
ACAS also states that most employers should treat IVF appointments just like any other medical appointment or sickness but of course, there is no legal requirement for that to be implemented. Then there is the question of dealing with pregnancy so an employee undergoing fertility treatment is only protected against pregnancy discrimination once she is deemed to be pregnant so we look to this case Maya which is the case of the European Court of Justice which determined that a woman undergoing fertility treatment is deemed to be pregnant when her eggs are harvested and fertilised prior to the embryo being transferred into her womb.
So we have this guidance and that was then affirmed by the employment appeal tribunal in a case called Pipkin. Again turning to the statutory code of practice published by the Equality and Human Right Commission, you can see there is a lot of good stuff in this code of practice that provides that where a woman is undergoing IVF she is protected from the point that the embryo is implanted. She is deemed pregnant and assumed plantation fails then the protected period ends two weeks later and that is in accordance with section 18 of the equality act.
So some of the things to watch out for, we know that not all detrimental treatment connected to IVF will be pregnancy and maternity discrimination if the woman is not deemed to be pregnant but, before the woman is deemed to be pregnant she will of course be protected under the equality act if she is treated less favourably than a male colleague due to her sex and there is also the potential here for a male colleague to complain of sex discrimination and that is because of the way in which the equality act works.
The equality act makes it clear that special protection can be afforded to a woman in connection with pregnancy or childbirth and that is disregarded for the purposes of direct sex discrimination. So a man cannot claim that he has been subjected to less favourable treatment because he has not received the same special treatment, but if a woman is given paid time off for example for appointments early in the IVF process when she is not deemed to be pregnant then that would not come within the scope of that exception. So it means the man could potentially claim sex discrimination. In terms of the future for IVF, there has been plenty of political campaigning for protection but as we speak, nothing introduced despite campaigning for there to be a right to special protection, legal protection from the point at which fertility treatment starts and an obligation on employers to have workplace fertility policies. Although of course it is, open to an employer to have those sorts of policies in place.
So moving on in relation to surrogacy, you have commissioning mothers or intended mothers who will eventually be the recipient of the baby that is born by the surrogate, they have no protection against pregnancy or maternity discrimination, they are not entitled to maternity leave and neither of the intended parents can take statutory adoption leave and could qualify for shared parental leave but nothing in relation to maternity leave. The intended parent in the surrogacy arrangement who is intending to apply for a parental order is also entitled to unpaid time off to accompany the surrogate mother to antenatal appoints and that is two antenatal appointments.
So the surrogate mother can of course take maternity leave, so it is a very complex and sensitive area, be aware that where you may be asked for advice in relation to a surrogacy. There are differences between UK and international surrogacy, that would need to be taken into consideration and also there is some scope for some really quite interesting and potentially quite difficult internal management where colleagues are involved, and we have had a situation advising an employer where the same sex couple were working together and they were the intended parents of a child who was being born by the surrogate who was one of their colleagues. So lots of complexity to deal with there.
Any future changes, well the Law Commission has looked at this, they closed their consultation back in 2019, October 2019 so many years, well three years ago now and nothing to date but it is a watch this space point.
So moving to my final slide in terms of the horizon scanning, the future. We heard a lot promised in the employment bill following the Taylor review, we are now several years out from that so what might we have been expecting and what is now on the stocks. There was some discussion about flexible working being the default position, the government has rode back on that, but we may well see this being a day one rise.
In terms of pregnancy, maternity and redundancy we now have the protection from redundancy, pregnancy family leave bill and that was introduced as a private members bill and the aim was that it would extend the protection available for redundancy both during and after pregnancy and after periods of maternity, adoption and shared parental leave. So some of that detail has now been set out, we have now got the bill, so it means that currently we have a situation where employees who are at risk of redundancy during maternity or family leave must be offered suitable alternative employment. I talked about in the context of the decisions in Wainwright and then the idea is that this will be extended so that right to suitable alternative employment will continue to apply after six months or until six months after the employee returns from maternity leave and it will also apply to pregnant employees before they go on maternity leave so we will have to watch for more detail, but the expectation is that if when this is introduced we will be looking at 2023, possibly 2024.
And then in terms of neo-natal care again, the government has promised a new right to 12 weeks paid leave and pay for parents whose babies spend time in neo-natal care units and the original consultation closed back in 2019 and we now have the paid neo-natal leave bill which has received government backing, that was announced back in July 2022. Again, another private members bill, it had its first reading back in June of this year and the bill is now progressing to the House of Lords. This will allow parents to take up to 12 weeks of paid leave in addition to other parental leave entitlement such as maternity leave to spend more time with their new born child in circumstances where babies are admitted to hospital up to the age of 28 days and they have a continuous stay in hospital of seven full days or more and that leave must be taken before the end of the period of at least 68 weeks beginning with the child's birth, and it will be a day one right.
There are some explanatory notes attached to the bill, which are worth looking at, it is an area that you are looking into. If the bill successfully completes its way through parliament then it is likely that we will see this thing implemented somewhere around 18 months after the conclusion of the parliamentary stages, which is likely to be early 2023. So probably nothing on the stocks until 2024.
So it really is a case of watch this space, there is a lot to deal with, a lot coming up and I will leave you to ponder some of the more tricky issues and take some questions.
Jane: Thanks very much Anna, certainly a lot for people to get their heads around and as you might expect we have quite a few questions that have come in. First up is one which I think we have probably both been asked regularly over the years which is somebody comes in as maternity cover and they turn out to do a better job or they are preferred over the period who's off on maternity leave. And the question is, what are the options in that situation and what are the risks if the employer decides to keep the cover and not allow the person to come back from maternity leave?
Anna: Considerable, considerable risk because I think one of the examples that was given by the Equality of Human Rights Commission of unfavourable treatment is that even if your maternity cover is better than your employee then you run a significant risk that if there were to be a claim then that claim would succeed. Which I know is one of those areas as Jane said we advise on which can cause quite a lot of tension I think in terms of encouraging line managers to understand the need to comply with the legislation.
Jane: Yes, I think it is a high-risk area but it does happen doesn't it. There is another one about the end of maternity leave if I group those ones together. So someone is on maternity leave but they are sick and that sickness continues after the date they were anticipating coming back. What happens in terms of handling that sick period?
Anna: I guess expanding on what I was talking about earlier I think it is really a case of going back to your sickness absence policy. Treating the individual just like you would treat any other sick employee, so that is your obligations under the policy but equally the employee's obligations to report and so on. And then going through the usual process of establishing the cause of the illness but not taking into account the period that has been spent on maternity leave. It will be a situation where that person is outside the protected period but you need to make sure that the maternity leave absence is not counted because otherwise you run the risk of a claim for sex discrimination.
Jane: Yes, OK. And another one about coming back and again this is one we get asked quite frequently. If the person has said they are going to come back on a certain date and then they ask to take a bunch of accrued holiday, can you refuse that, what are the options there for the employer?
Anna: OK, I mean if the employee has complied with your holiday policy and given the right amount of notice then, you know, they will have accrued quite a lot of holiday during the course of their maternity leave. It would be difficult I think in those circumstances to say no. I think to establish what they want to do because we have plenty of situations where people find it very useful to come back on a phased basis by running off their holiday. So I think it is really a question of having a conversation with the line manager and the employee to make sure that everyone's expectations are being managed.
Jane: Yes, yes, OK. And then there is one here which is an interesting one and I will hazard my answer to it and then you can tell me if you agree or disagree. So if a pregnant woman is temporarily promoted to a higher role and salary that goes with that higher role and then she goes on maternity leave before that temporary promotion ends, does the employer have to continue to pay the higher salary and if so for how long, for the whole of the maternity leave or just until the planned promotion end date.
I think my view of that would be unfavourable treatment of that person if you did not pay it but you only have to pay it until when you would have paid it if they had not gone on maternity leave. So only until the end of the planned promotion, not until the end of the MAT leave. Do you agree with that Anna?
Anna: I would agree with that and obviously the other thing to look at as well is obviously how you are calculating statutory maternity pay, because it may be that actually statutory maternity pay has been calculated on the old rate depending on when the temporary promotion was implemented and again an individual might challenge you on that but legally speaking you only have to go back and look at that relevant period, so the eight weeks before the 14th week before the child is born.
Jane: Yes, OK. And one very quick one because I am conscious of time, do fathers and partners have the right to take time off for ante-natal appointments?
Anna: Yes they do, it was a relatively, I was going to say new right but it has been around for quite a while now but yes the right to take time off for ante-natal appointments but it is unpaid.
Jane: Yes so limited value.
OK so we are just coming up to quarter to two so we are going to call it a day there. We have had some questions we have not managed to get to but we will come back to you if that was one of yours and somebody has asked whether we will be circulating a recording and a transcript. They will be available on the website once they are ready, obviously we have to check through them but they will be up hopefully in a few days' time.
So thank you very much to Anna for taking us through all of that and for picking up those questions, thank you to you for listening in and asking those questions, as I said we will be sending round a feedback questionnaire once the webinar has finished so please do fill that in, take a couple of minutes to do that we would be really very grateful. Otherwise, we will leave you to get on with the rest of your afternoon, thank you very much, goodbye.
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