Maternity Suspension
Suspension on grounds of maternity is covered in sections 66 to 68 of the Employment Rights Act 1996. Section 66(1) says that maternity suspension is when a woman who is pregnant, has recently given birth or is breastfeeding is suspended from work by her employer because of a relevant requirement or relevant recommendation. This page provides information on your legal right to maternity suspension pay and how to enforce your rights if your employer refuses to pay it.
Protection When You Are Pregnant and a New Mother
A requirement or recommendation can come from a workplace risk assessment, and/or your medical professionals taking care of you during this period. You have special workplace protection when you are pregnant and a new mother. Your maternity rights fall into five categories:
- Protection against unfavourable treatment or dismissal
- Protection from discrimination
- Paid time-off for antenatal care
- Maternity Leave
- Maternity pay
You will have a claim in the Employment Tribunal if your Employer breaches your rights under these five categories. These rights are contained in The Management of Health and Safety at Work Regulations 1999 and the Employment Rights Act 1996. They include the following;
Health and safety during pregnancy – Your employer must make a suitable and sufficient health and safety assessment of the risks that you face at work as a pregnant employee.
Ante-natal appointments – You have a statutory right to paid time off for your antenatal care no matter how many hours you work or how long you have been working for your employer.
Maternity leave – you are entitled to one year of statutory maternity leave no matter how long you have been working for your employer.
Maternity pay – You are entitled to 39 weeks of statutory maternity pay if you qualify, although you might be lucky enough to have better terms and conditions in your employment contract.
Keeping in touch (KIT) days – You can work for your employer during your maternity leave for up to ten days. This does not mean that your maternity leave is over.
Pay and benefits – You are entitled to the terms and conditions of your employment contract during your maternity leave (for example pay rises and bonuses). You can bring a claim for discrimination or detriment if your employer breaches these terms and conditions.
Health and safety after maternity leave – Your employer must make a suitable and sufficient assessment of the health and safety risks that you face at work as a new and breastfeeding mother.
Breastfeeding – Your employer must provide you with adequate rest and meal breaks and suitable rest facilities if you are a breastfeeding mother.
Holiday pay – You continue to accrue statutory annual leave during your ordinary maternity leave and additional maternity leave.
Flexible working – If you have a child under the age of 17, you have the right to request flexible working arrangements and your employer must give proper consideration to your request using the required statutory procedures.
Written reasons for dismissal – You have the right to be given written reasons if you are dismissed whilst pregnant or on maternity leave without having to make a request. This applies no matter how long you have been working for your employer.
Automatically unfair dismissal – It is automatically unfair to dismiss you or make you redundant because of your pregnancy or maternity.
Workplace Assessment
Your Employer will have health and safety obligations for you under the Management of Health and Safety at Work Regulations 1999 (MHSWR 1999), once they have been notified that you are a new or expectant mother. Your Employer must immediately carry out a risk assessment – Regulation 16 MHSWR 1999. If the risk assessment identifies any risks to your health and safety or to your baby, steps must be taken to remove, reduce or control the risk. If it is not reasonable to do this, or it would not avoid the risk, your employer must suspend you from work for as long as is necessary to avoid the risk.
Night Work
If you work nights and you provide a medical certificate from your GP or Midwife which says that working night shifts will affect your health, then your employer must suspend you from work, on full pay for as long as is necessary. Before being suspended on maternity grounds, section 67 Employment Rights Act 1996 says that you should be offered suitable alternative work if it is available. If you unreasonably refuse the offer of alternative work, you will lose your statutory right to be paid during the period of maternity suspension.
The Health and Safety at Work etc. Act 1974 allows your Employer to treat you differently to your colleagues at work as a new or expectant mother, where it is necessary to comply with laws protecting your health and safety.
Alternative Work
Your employer must offer you suitable alternative work before suspending you. Section 67 says that the alternative work offered must be suitable for you and appropriate for you to do in the circumstances. In addition, the terms and conditions of the alternative work must not be substantially less favourable than your previous job. If you are on paid suspension where your employer has refused to offer you suitable alternative work, section 70 Employment Rights Act 1996 allows an Employment Tribunal to award you any sum it considers fair in the circumstances. You have 3 months from the date of the refusal to file your claim in the Employment Tribunal.
Right To Pay During Suspension
Under section 68 ERA 1996, you have a right to your full pay during maternity suspension, unless you unreasonably refused an offer of alternative work. If your employer does not pay you during maternity suspension, you can claim your pay from an Employment Tribunal. You have 3 months from the date of the non-payment to file your claim in the Employment Tribunal.
Discrimination
The law about pregnancy and maternity discrimination is governed by the Equality Act 2010 (EQA 2010), which provides a list of protected characteristics. Pregnancy and maternity are protected characteristics under section 18 of the Equality Act 2010. Section 18 specifically prohibits workplace discrimination during pregnancy and maternity as follows;
It is unlawful for an employer to:
- discriminate by treating a job applicant or employee unfavourably during the protected period (which is the period from the beginning of pregnancy to the end of maternity leave) because of her pregnancy or because of an illness she has suffered as a result of her pregnancy – Section 18(2) EqA 2010
- or
- discriminate by treating an employee unfavourably because she is on compulsory maternity leave or because she is exercising or seeking to exercise, or has exercised or sought to exercise, the right to ordinary or additional maternity leave – Sections 18(3) and (4) EqA 2010
[see How to write a grievance about discrimination at work]
Automatically Unfair Dismissal
Under section 99 ERA 1996 and regulation 20 MPLR 1999, it is automatically unfair to dismiss a woman because of her pregnancy, childbirth or maternity leave or other pregnancy related reason. You don’t need 2 years’ service to bring such a claim as there is no qualifying period of employment for automatically unfair dismissals. You are entitled to written reasons for your dismissal – section 92(4) ERA 1996.
Detriment
Section 47C Employment Rights Act 1996 makes it unlawful for your employer to subject you to a detriment other than dismissal for any of the reasons listed in Regulations 19 and 20 of the Maternity and Parental Leave etc. Regulations 1999.
Damages
Regulation 22 of the Management of Health and Safety at Work Regulations 1999 allows you to sue for damages if you are injured because of your employers failure to follow these regulations.
Best of the Web
Maternity Action – Health and safety during pregnancy and on return to work
ACAS – Your maternity leave, pay and other rights
Citizens Advice – Agency workers and pregnancy
Health and Safety Executive – Risk Assessments
New and expectant mothers who work
Last Updated: [11/09/2021]
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