Late Notice of Maternity Leave – Law Clear as Mud
The law is complex. It should be logical and clear but it’s often anything but and it would be even better if you could rely on just one piece of legislation or even to be able to look in only one place to find the solution to an internal organisation issue or legal problem.
It requires training to interpret the law and that’s where having a lawyer who has years of experience and business savvy comes in.
It’s not Black or White
We were recently discussing the complexity of law with someone who raised an interesting point about an employee who provided late notice of pregnancy and maternity leave and what the employer’s rights were. An HR professional with a robust view on employer protection.
Maternity and Parental Leave …. Regulations 1999 (1999 Regs)
At first glance it appears that all the information regarding maternity leave notice should be contained within the Maternity and Parental Leave …. Regulations 1999 (1999 Regs). And Regulation 4 makes it clear that an employee will be “entitled to ordinary maternity leave if she satisfies” certain conditions which include giving notice “at least 21 days before the date on which she intends her ordinary maternity leave period to start, or, if that is not reasonably practicable, as soon as is reasonably practicable, she notifies her employer of—
(i) her pregnancy;
(ii) the expected week of childbirth, and
(iii) the date on which she intends her ordinary maternity leave period to start
Now that seems straightforward and many HR professionals and employers alike are comforted by the regulation.
The regulation relies on the mum-to-be letting her employer know the following:
- that she is pregnant and
- the expected week of childbirth (EWC) and
- the preferred date for the start of maternity by the end of the 15th week before the EWC.
However, the mum-to-be can change her mind about the maternity leave start date by giving at least 28 days notice of the new date. In fact, for health and safety reasons, employees should be encouraged to share their happy news as soon as is possible.
The process is designed to enable the employer to respond within 28 days providing details of the end of the maternity period (and the back to work date) but can also be a great opportunity to set out other arrangements, like keep in touch days.
What Does Reasonably Practicable Mean?
On a practical basis, most employers would usually find it difficult to argue that they were unaware that a visibly pregnant woman was pregnant. However, ignoring that point, we are left with having to interpret what is “reasonably practicable” in terms of giving notice.
This in turn means considering
- why did the employee give late notice? and
- in these circumstances, did the employee give notice as soon as was “reasonably practicable”?
Assume for one moment that the employer is dissatisfied with both answers that the employee provides to their questions; perhaps the employee just couldn’t be bothered. An idea forms that maybe the employer, based on this legislation, could consider (even if they are not going to carry it out) refusing or delaying maternity leave.
Regulation 6 of the 1999 Regs means that if an employee
- is “absent from work wholly or partly because of her pregnancy at any time during the four week period prior to her due date of confinement”[1], or
- gives birth earlier than expected
her maternity leave starts from that date of illness/birth, regardless of any date/notices.
Look at the Wider Picture
It’s not that simple. Just as you are about to email the advice to the relevant manager or client, you have that sinking feeling that there are other things to consider. Go with your gut, there are. Employment law is never just one regulation; you always need to look at the wider picture.
Equality Act 2010
Start by examining the Equality Act 2010 which will tell you that an employer needs to be wary of any form of “unfavourable treatment” because of the pregnancy or “illness suffered by her as a result of it”. Although dependent on the circumstances of the lack of notice of course, it is easy to see how a disgruntled employee could rely on this.
Now let’s throw in a curve ball. What if the employee has a mental or physical illness (linked to the pregnancy or not) which is a disability or “protected characteristic” under the Act? What happens if they relied on this aspect as a reason for the failure to give relevant notice? Isn’t that discrimination? What about indirect discrimination?
The problem with the law is that you are expected to consider both the actual legislation that you want to rely on AND the background and supporting legislation, even if it is not directly referred to.
[bctt tweet=”Two Takeaways – the law is always unclear when dealing with employees and refusing statutory rights – tread carefully” username=””]
Two Takeaways
- the law is always unclear and you generally can’t rely on what seems to be the easiest (logical) path and
- when dealing with employees and refusing statutory rights – tread carefully and, if you intend to refuse to uphold that right, be well researched on the surrounding legislation and best practice and be ready for a fight.
Yes but what does that mean on a practical basis?
If you are an employer who has an employee giving less than 15 weeks notice, what can/should you do?
Whilst an employer can’t refuse maternity leave, if the employee does not have a “reasonable” excuse for providing insufficient notice you can delay the
- start date for leave or
- pay
Usually by 3 weeks, by writing to the employee to this effect within 28 days of the date the leave is requested.
However, since this is a relatively “untested” area of law (meaning there are no real relevant cases which we can look at to see what happened) we believe you need to approach your decision using a simple process/checklist:
(1) Should I have known about the pregnancy?
This is obviously very subjective – for example, employees who work from home could more easily fail to reveal a pregnancy. However, as an employer this does require an honest overview of the situation. If, for example, it is something which a line manager should have picked up on, you may need to consider other issues and assess training needs at that level.
(2) Why has the employee given me less than the required notice?
Is there a “reasonable” (good) excuse for late notice? Would a “reasonable” person find this excuse acceptable?
So, for example, someone who was afraid to tell people because she has a history of miscarriage and was worried that she may lose the baby may have a “good reason” whilst someone who “couldn’t be bothered to find out when they had to give notice” may find less sympathy.
(3) If I delay leave and/or pay, am I treating the employee unfavourably?
For example, consider issues such as
- would the delay cause a potential risk (such as a health and safety risk)?
- have you accepted less notice than was required in previous situations and allowed the employee leave? For this question, whilst you obviously need to start with maternity leave, I also think it’s important to look at what your business’ precedent is for late notice generally, whether it is for holidays or similar situations.
(4) If I accept the “short” notice am I generally putting employees in an unfavourable position?
For example, if by accepting the employee’s notice there is insufficient time to organise maternity cover, could the potential result mean a business restructure which could also ultimately put the position of other employees and the pregnant employee’s return to work into question.
Whilst we are not suggesting that this process will give you all the answers it will provide some transparency as to how you should reach your decisions and is an opportunity to record your decision making process in writing.
For specific advice, call us on 01244 300413 or email [email protected]