How to Support Pregnant Employees Effectively

It’s highly likely your workplace will employ women of childbearing age. If they become pregnant, you must do your utmost to support them.

This means allowing time off for antenatal appointments, providing the correct maternity pay, and ensuring their Health & Safety.

Failure to do so could mean your business could face serious consequences. Such as pregnant employees submitting discrimination claims - or automatically unfair dismissal claims, to an employment tribunal.

In this guide, we'll discuss pregnant employees, statutory maternity pay and antenatal appointments, as well as your legal obligations.

What are the rights of a pregnant employee?

Pregnant employees have four main legal rights. These apply to both pregnant women and new mothers. The rights include:

• Paid time off for antenatal care.
• Maternity leave.
• Maternity pay or maternity allowance.
• Protection against unfair treatment.

It's important that you read and understand these rights, so you know your legal obligations as an employer. Let's explore the above in more detail.

Paid time off for antenatal care

The first legal right pregnant employees have is paid time off for antenatal appointments. These might take place during their normal working hours.

There is no qualifying period for this right. But pregnant staff should provide as much notice as possible for employers to reasonably accommodate this request.

What does paid time off for antenatal care include?

Paid time off for antenatal care doesn't just include medical appointments, such as medical examinations. It can also cover pregnancy-related absence, such as:

• Antenatal care.
• Maternity and breastfeeding workshops.
• Relaxation classes.
• Parenting classes.

You can also request pregnant employees show proof of antenatal appointments (with the exception of the first appointment). For example, a medical certificate or appointment card. It's not a necessity, but it might be useful for your own records.

Do employees get paid when attending antenatal care during work?

Pregnant employees must receive the same normal rate of pay during time off for antenatal care.

It’s also worth noting that the pregnant woman's partner has the right to unpaid time off work for two antenatal appointments. This includes those who have a civil partner.

What counts as reasonable time off for antenatal appointments?

Reasonable time off for antenatal appointments includes the length of the appointment, as well as any additional time spent travelling or waiting.

Partners attending the appointment can only take up to six and a half hours of paid time for each one they attend. Any additional time taken can be taken as annual leave or unpaid time.

Maternity leave

Pregnant employees are also entitled to take Statutory Maternity Leave, which is 52 weeks long (or a year). If they choose not to take Statutory Maternity Leave, they must take Compulsory Maternity Leave.

Let's take a look at both in more detail.

Statutory Maternity Leave

Pregnant staff can work right up until the baby is born. Unless they have a pregnancy-related illness - in which case maternity leave will begin four weeks before the baby is born. Statutory Maternity Leave is made up of:

• Ordinary Maternity Leave - the first 26 weeks.
• Additional Maternity Leave - the latter 26 weeks.

Pregnant employees do not have to take Statutory Maternity Leave if they don't want to, but they still must take Compulsory Maternity Leave. They could also just take Ordinary Maternity Leave and not Additional Maternity leave.

Compulsory Maternity Leave

Pregnant employees must take at least Compulsory Maternity Leave. This period runs for two weeks after the baby is born. But if your employee is a factory worker, this period must last four weeks instead.

It's also important to note that a pregnant woman's partner can take shared parental leave with them. This means they can end maternity leave early, and their partner can take their remaining allowance. Couples can share up to 50 weeks of leave and up to 37 weeks of pay.

Statutory maternity pay or maternity allowance

Pregnant staff are only entitled to Statutory Maternity Pay (SMP) if they have worked for their employer continuously for 26 weeks by the end of the 'Qualifying Week' (which is 15 weeks before the expected week of childbirth). They must also:

• Earn an average of at least £123 a week.
• Have given the correct notice and proof of being pregnant.

Employees can receive SMP up to 11 weeks before the expected week of childbirth, but only if they stop work. If they don't qualify for SMP, they might be able to claim maternity allowance from the government instead.

Protection against unfair treatment

Pregnant employees are also protected from being treated unfairly because of their pregnancy, or a pregnancy-related illness. For employees, this protection lasts from the start of pregnancy to the end of maternity leave.

Unfair treatment in relation to this is known as pregnancy and maternity discrimination. It doesn't matter if employees are full-time or part-time, or if they've only worked for you a short while - the same rights still apply.

What are some examples of pregnancy discrimination?

There are two examples of pregnancy and maternity discrimination a pregnant woman or new mother can encounter, including direct discrimination and indirect discrimination. Let's take a look at these examples in more detail.

Direct discrimination

Direct discrimination occurs when an employee receives unfair treatment because of their pregnancy.

For example, if a staff member is denied a promotion because they’re pregnant, this would be an example of direct discrimination.

Indirect discrimination

Indirect discrimination occurs when a policy or practice applies to all employees, but affects pregnant women in the workplace negatively.

For example, if an employer asks staff to work set hours. This might have an adverse effect on pregnant women in the workplace, because they may need more breaks than the average employee. Therefore, it could be classed as indirect discrimination.

Do pregnancy rights apply to employees on a zero-hours contract?

Yes, all pregnancy rights apply to employees on zero-hours contracts - but only if they are classed as an employee.

Zero-hour workers can still qualify for SMP, however.

Do pregnancy rights apply to employees on a fixed-term contract?

Employees on a fixed-term contract have the same pregnancy and maternity rights as permanent staff. This includes the same Health & Safety rights, such as the right to work in a safe environment.

If an employer doesn't try to reduce, remove or control any risk in the workplace, it could have severe consequences. For example, it could result in serious or fatal injuries, sex discrimination claims to an employment tribunal, and financial loss.

What does an employer have to do when an employee is pregnant?

As an employer, you must perform a risk assessment of your workplace when an employee is pregnant. The Health and Safety Executive also advises you to perform one when a staff member:

• Is breastfeeding.
• Has given birth within the last six months.

The law requires you to perform risk assessments regularly anyway, for Health & Safety reasons regarding all staff. But, you must conduct a separate specific assessment of the risks that could affect your pregnant employee.

What should a pregnancy risk assessment include?

There are several items you need to include in your pregnancy risk assessment. Ensure you're aware of them all so you check all hazards thoroughly. This includes:

• Working conditions: Your assessment must look at whether you need to change your pregnant employee's working conditions. For example, you might need to amend their normal working hours so they can avoid being exhausted from driving in rush hour traffic.
• Manual handling: It must also look at whether your pregnant employee's role requires them to perform heavy lifting, for example, if you work in construction. If it does, you might need to provide them with suitable alternative work.
• Suitable facilities: Your assessment must check whether you have provided suitable facilities for your pregnant employee. This also covers the period after the baby is born, when they could be breastfeeding. Suitable facilities may include a private room for staff to express milk or rest in - a bathroom isn’t a sufficient space.
• Toxic substances: Ensure you check the risk of toxic substances causing harm to your employees. This is most relevant if you work in industries with exposure to hazardous liquids, such as ammonia, acids, and alcohols.

You must also check if your employee needs more Personal Protective Equipment to perform their role. And if they need back support when working at a desk in an office. If you cannot remove or reduce the chances of harm occurring, you must provide the employee with suitable alternative work.

What happens if your pregnant employee can't do the same job?

If a pregnant employee cannot perform the same job because of their pregnancy, or because they are breastfeeding, you’re required to provide them with suitable alternative work. Moreover, they must still receive the normal rate of pay or normal full pay in their new job.

For example, a pregnant employee might not be able to perform night work due to the harm it causes them or the baby. In this instance, the employer must provide them with suitable alternative work during the day instead.

If they can’t, the employee should be put on maternity suspension and paid in accordance with the rules.

How many breaks is a pregnant employee entitled to?

According to the Health and Safety Executive, pregnant employees are entitled to more frequent rest breaks than an ordinary employee. The timing and frequency of which should be agreed by both the employer and the employee.

How many hours can a pregnant woman work?

There is no law that limits how much a pregnant woman can work, but excessive working hours are likely to harm them and the baby.

As an employer, you are responsible for limiting and removing harm your work causes pregnant staff. So ensure they’re comfortable with their working hours and their safety isn't at risk.

Can you discipline a pregnant employee?

Yes, you can discipline a pregnant employee, but only if the disciplinary action is unrelated to the pregnancy. For example, if they have made inappropriate comments about a staff member with a protected characteristic.

When taking disciplinary action against pregnant staff, ensure their rights are met. This includes:

• Allowing a union representative to accompany them to disciplinary hearings.
• Allowing them to provide evidence or call witnesses.
• The right to appeal against your decision.

You must also follow the disciplinary procedure you have outlined in your employment contract. Check the Acas Statutory Code of Practice on disciplinary action for more information.

Can you dismiss a pregnant employee?

Yes, you can dismiss a pregnant employee, but again, this must be because of reasons unrelated to their pregnancy. Otherwise, they could submit an unfair dismissal and discrimination claim to an employment tribunal.

If this occurs in your company, you must ensure you provide written reasons for the pregnant employee's dismissal. Ensure you have followed your disciplinary procedure as well. This should be set out in your employment contract or employee handbook.

Can an employee claim contractual sick pay during maternity leave?

An employee is not entitled to claim contractual sick pay during maternity leave. However, they can give eight weeks' notice to end maternity leave early, so they can receive contractual sick pay and take sick leave. But, they must actually be ill.

If you're unsure what you've agreed with pregnant staff, check their employment contracts. This will ensure you follow what you've outlined, and they can't make a breach of contract claim to an employment tribunal.

Get expert advice on pregnant employees from Peninsula

Women of childbearing age might work at your company. If they get pregnant, you must comply with their legal rights. This means providing paid time off for medical appointments, maternity leave and maternity pay if they qualify, as well as protection against unfair treatment.

If you don't, your employees could raise claims against you to a tribunal. Meaning your business could face legal costs and even reputational damage.

Peninsula offers expert advice on pregnant employees and their rights, including their maternity rights and parental leave. Our teams provide 24/7 Health & Safety advice which is available 365 days a year. We take care of everything when you work with our Health & Safety experts.

Want to find out more? Contact us on 0800 028 2420 and book a free consultation with a Health & Safety consultant today.