Maternity Considerations

Important developments in case law mean that employers must be aware of the following considerations.

• Annual leave continues to accrue whilst on maternity leave and whilst the Working Time Directive does not confer the right to carry forward annual leave from one holiday year to the next, as a result of a recent case at the European Court of Justice, employers should allow holidays to be carried forward if maternity spans more than one holiday year.
• Traditionally the statutory maternity pay (SMP) rate has been determined by the employee’s average weekly pay during the reference period, ie the eight-week period to the end of the qualifying week (15 weeks before the baby is due). New regulations oblige employers to recalculate the level of SMP if a pay rise takes effect at any time between the reference period and the end of the maternity leave. This could result in low paid women qualifying for SMP for the first time or a new weekly rate of SMP for someone already on maternity leave.
• The case of Athis v Blue Coat School sends an important message to employers to keep employees on maternity leave fully informed about their contractual terms. In this case, an employee on maternity leave had not been granted a pay award because the school had failed to make her aware of a notice displayed in the school staff room outlining the employees’ right to make representations to the Head about a pay review.
• The well publicised case of Starmer v British Airways highlights the importance of taking requests for flexible working seriously upon return from maternity leave. In this case the employer was found to have indirectly discriminated against Starmer who was an airline pilot by refusing to allow her to work 50% of her usual hours. Their rule that pilots had to fly at least 2,000 hours per year operated to the detriment of more women than men and was deemed to be indirect sexual discrimination. So whilst requests for flexible working may be declined for business reasons, they will not be accepted without challenge and employers should ensure they have a clear and objective justification for saying no that will stand up to examination.