Maternity Rights

Teterow

Hi there,
wondered if someone from HR could help.

I am currently covering someone's maternity leave. My employment will finish in June next year, unless the person does not return from mat leave. If I was to fall pregnant, would I have the same rights as a permanent employee?

AsknAnswer

In what respect?

mrs_pickle_2

Yes, you will. There is clear case law on this point.

McKneff

mrs_pickle wrote: »

Yes, you will. There is clear case law on this point.

can you post a link to this clear law.

mrs_pickle_2

• a pregnant woman is protected even if she has been employed to cover for another worker who is on maternity leave. In Webb, Mrs Webb was employed to cover for a pregnant employee, but she was given a permanent contract as her employers intended to keep her on once her maternity cover finished. She became pregnant several weeks after starting work and was dismissed. The ET, Employment Appeal Tribunal (EAT) and CA held that a man absent for a similar period would also have been dismissed so there was no discrimination. However, the ECJ held in Webb that:
  
  
• there can be no question of comparing the situation of a woman who is unable to work because of her pregnancy with that of a man similarly incapable for medical or other reasons
• dismissal of a pregnant woman recruited for an indefinite period cannot be justified because she is unable to work for a temporary period because of her pregnancy
• the protection of a woman during pregnancy and childbirth could not depend on whether her presence at work was essential to the proper functioning of the undertaking
• any less favourable treatment of a woman because she is pregnant or because of the consequences of pregnancy is discrimination.

The HL held that it was unlawful to dismiss a woman who had been employed for an indefinite period where she was temporarily unavailable for work as a result of her pregnancy.


http://www.equalityhumanrights.com/en/foradvisers/EocLaw/EocLawSco/SiteResources/Casesummaries/W/Pages/WebbvEMOCargoC-3293%5B1994%5DIRLR182ECJ;(No2)[1995]IRLR645HL.aspx

AsknAnswer

As I understand it, an employee on a temporary contract would hold the same maternity rights, however they would not hold the right to return to the job if she was due to return after her contract ended. For example, if her contract was due to end on july 30 and she went on maternity leave on June 14th, they could quite legally stop paying her maternity pay on July 30th and end her contract as normal. This is not discrimination as the contract has been fulfilled. So unless the OP is given a permanent contract or has her contract extended, she would hold no legal right to return to her job if maternity leaves overlaps the ending of her contract.

mrs_pickle_2

That is incorrect.

Once an employee qualifies for Statutory Maternity Pay then the employer is obliged to pay it for the duration [currently 39 weeks (6 wks @ 90% of weekly wage and 33 wks at Statutory Rate of £123.06)] even if the employee wishes to resign a week after the qualifying criteria is met.

To assess whether qualifying criteria is met visit - http://www.dwp.gov.uk/advisers/ni17a/smp/smp_2.asp

However, if the contract was to expire during maternity leave, then the employer will not be legally required to take the employee back.

Teterow

Thanks for the advise. I am currently covering maternity leave until june next year. My current employer has a quite generous maternity pay (6months at average of 75%of salary). If I was due say in Aug 2010, would I be receiving the company's 6months maternaty pay? Or would I be getting nothing, as my contracts ends at the end of June 2010? As money is tight and I would like to start a family, I need to be really clear on this.
Thanks for your help.

oh just found this:
If your contract ends

If you satisfy both the continuous employment rule and the earnings rule, your employer must pay you SMP even if your contract ends at any time after the start of the 15th week before the week your baby is due.

clairec79

I doubt you'd get the company extra - I worked for a company that did full pay and it was written in that we had to return for 1 month after to get the fullpay and if we didn't we'd have to repay any above SMP, I would imagine most companies have that policy

mrs_pickle_2

Your employer must pay SMP however, as your c/o offers a generous maternity pay policy I imagine as clairec79 pointed out that they will have contractual clauses setting out recoupment etc so basically check your contract of employment in respect of enhanced maternity payment.

Roobarb73

Correct, provided you meet the SMP earnings and length of service requirements then you will trigger the entitlement to SMP regardless of whether you stay in employment or leave. When I was pregnant with my first baby I was on a fixed term contract that ended when I was 27 weeks pregnant, my employers had to pay me SMP as I was still employed 15 weeks before the baby was due and I'd satisifed the earnings and service requirements.

However they would be under no obligation to give you another job, as you've taken the job for a fixed period until someone else returns from mat leave so it's not like they would be getting rid of you because you were pregnant.