No, you shouldn't ask any questions that aren't relevant to the job. Any questions relating to pregnancy, children and parental responsibility could cause offence and if she doesn't get the job, could be used as evidence that you discriminated against her, even if that was not the basis of your decision.
Understand your rights and responsibilities
As a business owner, there can be so many plates to spin at any one time; understanding employee rights is an important factor in growing a successful team. Gender fairness and employee diversity are crucial for businesses and also important from a legal standpoint.
It's important to have an up-to-date understanding of your employees' rights and what you can expect from each other. That's why we've put together a free employers' guide to maternity for you to download.
Frequently asked questions
This section aims to give you a better understanding of your legal rights and responsibilities regarding pregnancy and new parents in the work place. Take a look at these common questions which we've grouped into three sections:
You must ensure that all pregnant employees take at least two weeks off work (or four weeks if they work in a factory), immediately after the birth of their child. You must also carry out a health and safety risk assessment if the work they do could pose a risk to her or the baby.
If this assessment reveals any concerns, you must take all reasonable measures to avoid the risk. This could involve changing the employee’s working hours or conditions. If you’re unable to remove the risk, you must suspend the employee on full pay for as long as necessary.
Yes, as long as it does not pose a risk to her health and safety. However if a doctor or midwife provides your employee with a medical certificate stating that she must not continue to work nights, then you must offer suitable alternative day work on the same terms and conditions. If that is not possible, then the employee should be suspended from work, on paid leave, for as long as necessary or until the maternity leave starts.
Whilst it is a legal obligation for employers to regularly review general workplace risks, there is no legal requirement to conduct a specific, separate risk assessment for pregnant employees. However, you may choose to still do one, to see if any additional action needs to be taken.
In exactly the same way as you would treat any other sick employee, in accordance with your company sickness procedure.
If pregnancy related illness means she is absent from work during the last four weeks of her pregnancy, maternity leave will start automatically, even if the employee intended it to start at a later date
During maternity leave, an employee is entitled to all of her normal terms and conditions of employment (except pay).
This could include any non-cash contractual benefits such as a company car, home PC, gym membership, health benefits and any holiday entitlement.
It can, but it can be difficult and is best avoided if possible. If a redundancy situation arises during an employee's maternity leave, you must consider whether it is reasonably practicable to continue to employ her in her existing job. This will involve considering whether the employee on maternity leave, or some other employee, should be selected for redundancy. If you decide to select the employee on maternity leave, you must offer her any suitable vacancy that is available, or pay redundancy pay, just as with the other employees affected.
If you do make an employee on maternity leave redundant after 15 weeks before the baby is due, you may be required to continue paying their maternity pay, even if they no longer work for you
Breastfeeding employees have the right to have somewhere for them to rest in the workplace. If possible, this should also include somewhere for them to lie down.
Whilst you are not legally required to do so, you should provide a healthy, safe and suitable environment for employees to express and store milk (toilets are not suitable).
No limit should be placed on the length or frequency of breastfeeding breaks.
Yes. If the employee has been employed by you for at least 26 weeks (including her maternity leave), she has the right to request a change in her working hours.
You are obliged to give the employee’s request careful consideration. Whilst you should be flexible in your approach, it is up to you if you grant it or not, but if you decide not to, you must provide the employee with good business reasons for your decision.
If you turn down a request you must be able to demonstrate that your reasons are objectively justified and be aware that the employee could raise a claim against you.
All new mothers are entitled to take up to 52 weeks’ leave. You need to be aware that every woman must take at least two weeks’ compulsory leave after the birth of a baby (or four weeks if they work in a factory).
The first 26 weeks of leave is known as ordinary maternity leave. The 26 weeks after this is known as additional maternity leave.
The earliest maternity leave can usually begin is 11 weeks before the expected due date. If the baby arrives early, maternity leave will automatically begin the following day. Maternity leave can also be triggered if an employee is off sick with a pregnancy related illness in the four weeks before the expected due date.
For the latest information on statutory maternity leave entitlement, take a look at the GOV UK website.
Whilst some businesses may choose to offer enhanced maternity pay, the statutory maternity pay tends to be as follows, but does depend on the employee’s circumstances:
- For the first six weeks, statutory maternity pay is paid at the higher rate, i.e. 90% of the employee’s normal weekly earnings.
- For the remaining 33 weeks, it is then paid at the lower rate of £136.78 (2013-14 rates), or 90% of the woman’s average earnings.
For the latest information on statutory maternity pay, take a look at the GOV UK website.
To be entitled to statutory maternity pay an employee must have:
- Worked for you continuously (full or part-time), for at least 26 weeks up to 15 weeks before the baby's due.
- Average earnings at least equal to the lower earnings limit for National Insurance Contributions.
- Given the notice of when they would like maternity payments to start.
For the latest information on statutory maternity pay, take a look at the GOV UK website.
Maternity leave can start any time after 11 weeks before the baby is due, right up until the baby is born.
If the baby arrives early, maternity leave will start automatically the day after.
When an employee is on maternity leave she will continue to build up holiday entitlement, just the same as she would if she was at work. If she normally has Bank Holidays off, in addition to her holiday allowance she should also accrue these days too.
You can calculate employee holiday entitlement on the GOV UK website.
To be entitled to take paternity leave, an employee must:
- Have been employed by you for at least 26 weeks by 15 weeks before his partner’s due date.
- Be the father of the child, or the mother’s husband, civil partner or cohabiting partner (same sex partners are included).
- Have, or expect to have, responsibility for bringing up the child.
To take paternity leave, your employee will need to give you written notice by the end of the 15th week before the baby is due.
The notice should explain when the baby is due, and when he would like to take the leave. It can be taken when the baby is born or at a later date, but it must usually be taken within 56 days of the birth or, if the baby is early, 56 days of the due date.
My employee's responsibilities
Yes. You can ask your employee to provide a certificate from her doctor or midwife. If after a reasonable period of time they haven’t provided the requested certificate, you are not bound to maintain any changes or arrangements you have made in view of her pregnancy. You must however, allow a reasonable period of time for all necessary medical examinations and tests to be completed.
Your employee must notify you by the end of the 15th week before her baby is due (when she is about 25 weeks’ pregnant). Even when she has given you the date that she wants her maternity leave to start, she still has the right to change her mind, but must notify you of any changes at least 28 days before.
If she intends to return to work she doesn’t have to give you any notice. If she wants to return before the date previously agreed, she should give you at least eight weeks' notice. Without the correct notice, you can postpone her return to make it up to the eight weeks required.
If an employee doesn’t want to come back to work after maternity leave, she will need to provide you with her normal amount of notice, in the normal way.
She will continue to build up holiday entitlement until her maternity leave or notice period ends (whichever is sooner).
She won’t have to pay back any statutory maternity pay she’s received, but if you’ve provided her with enhanced benefits, she may need to return a proportion of any payments to you (depending on her contact with you).
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