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Maternity leave – your rights

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Maternity leave is an important period for all working mums. It gives women an opportunity to prepare for the birth, then bond with and care for the child during the first days, weeks, and months of its life. Here, we take a look at what rights you have when it comes to organising and taking maternity leave.

Who is eligible for maternity leave?

Maternity leave is available to those classed as an employee. It is not available to those classed as workers'. The distinction between the two can be difficult to define and there are a number of notable exceptions. Generally, employees are considered to be those individuals who work regularly for a fixed number of hours. The number of hours is typically determined by the employer. On the other hand, a worker can be someone who works for an agency, is employed on a zero hours contract, or only performs casual work.

These definitions of employee' and worker' are generalisations and it can be difficult to tell which of the two categories you fall into. As always, there are a number of exceptions to the rule. For instance, there are different rules and rights for those in the armed forces and police, if you work on a fishing boat and take home a share of the profits, or if you're self-employed. If you're unsure about your status, it may be a good idea to contact us for assistance.

What are your rights?

When it comes to maternity leave, you retain a number of fundamental rights and entitlements. You can take up to a year (52 weeks) of maternity leave and have to take a minimum of two weeks leave if you work in any environment other than a factory setting, in which case a minimum of four weeks is necessary. The leave can start any day within 11 weeks of the due date and you have the right to determine what day it does begin. In certain circumstances, such as the baby arriving early or you falling ill within four weeks of the due date, you can start maternity leave early.

Don't believe the usual internet hype that you cannot be made redundant during maternity leave, either. If your position becomes redundant during your time off, then you will be entitled to the same considerations as anyone else in the same position, regardless of any maternity leave you may be taking at the time.

What do you need to do to get maternity leave?

In order to get maternity leave, you are supposed to inform your employer that you are pregnant at least 15 weeks before the baby is due to be born. You will need to tell them your baby's due date, that you will be taking maternity leave, and the expected start and end date for your leave. All of this should be submitted in writing and some employers will request proof of pregnancy. Start and end dates for your maternity leave can be changed at a later time, though you will need to give advance notice of these changes.

What happens if you're refused maternity leave?

It's rare that an employer will refuse maternity leave if you've followed the correct procedures, notified them within the proper timeframe, and provided evidence of your pregnancy. If they do refuse you maternity leave, they may be guilty of maternity discrimination. You will need to ask them to justify their decision, preferably in writing, and then you should contact legal advisors as soon as possible. Your trade union may also be able to help.

Other considerations

It's important to note that maternity leave and maternity pay are two different things, for which there are two different sets of rules and rights. Likewise, parental leave and shared parental leave are two processes that often interact with maternity leave, but are separate and distinct processes. Finally, we want to emphasise the importance of committing every step of the maternity leave process to paper. Both you and your employer should utilise written applications, requests, and responses to ensure that there is no space for confusion or exploitation further down the line.

Steven Judge

Steven Judge is a Partner and Head of our Employment Law Department and can be contacted on 01323 434420 by email

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