We have seen an increase in member queries on pregnancy and maternity, but before you stop reading, thinking, “This so isn’t for me,” says Sara Ford, please be aware that the issues being raised need to be understood by anyone managing staff.

Pregnancy and maternity

For most members and their staff, arrangements around maternity will be covered by the Green Book for support staff or the Burgundy Book for teachers. The statutory scheme runs parallel to these agreements and there may, in addition, be enhanced provisions that have been negotiated with individual employers.

Given that pregnancy and maternity are protected characteristics, understanding the following provisions and rights around maternity is essential.

The start of maternity leave

The Burgundy Book states: “Where the teacher is absent from work ‘wholly or partly because of pregnancy or childbirth’ after the beginning of the 6th week before the EWC. In these circumstances, maternity leave will be automatically triggered.”

However, the statutory requirement states that this is after the beginning of the fourth week, and it is this date that takes precedence over the Burgundy Book. Therefore, employers should not try to get members of staff to start their maternity leave earlier than this date, but should continue to record the absence as pregnancy related.

Pregnancy-related absence

From the moment a woman becomes pregnant until the end of her maternity leave, she enters what is known as a ‘protected period’, during which because of the nature of her condition, she has acquired a protected characteristic and it would be unlawful under the Equality Act 2010 for an employer to discriminate against her.

Employers should not, therefore, take into account any pregnancy-related absences for the purposes of attendance management, or when deciding whether to dismiss or appoint an employee. It is also best practice to record any sick leave taken for a pregnancyrelated illness separately.

Repayment of occupational maternity pay (OMP)

The occupational part of maternity pay is made on the basis that the member of staff undertakes to return to work. Under the Burgundy Book, the obligation on the teacher is for 13 weeks; under the Green Book, the obligation on support staff is three months. However, there is a recognition that the member of staff may be unable to fulfil that obligation, and, therefore, the following clause from the Burgundy Book applies (with a similar one applying for support staff):

“In the event of the teacher not being available, or being unable, to return to her job for the required period, she shall refund such sum after the first six weeks’ payment as the employer at their discretion may decide. Payments made by way of SMP [statutory maternity pay] are not refundable.”

Employers should note that the amount repayable is at their discretion. There is no obligation to pay the full amount. They should also note that, depending on the timeframe around the maternity, and the nature of the contract, they may need to have allowed a period of annual leave, which if they are recouping OMP, will need to be offset against the amount deemed outstanding.

Employers also need to be careful not to go beyond the contractual requirements. The Burgundy Book is clear that the obligation on teachers is to return to work for at least 13 weeks including school closures. Employers are not at liberty to exclude closure periods for those for whom the Burgundy Book applies. Nor may they pro rata the 13 weeks/three months up for part-timers.

Notice periods

For those members of staff who find themselves unable to return to work at all after their maternity leave, the two/ three terms notice periods do not apply. If a woman on maternity leave does not intend to return to work, she must give 21 days’ notice.

Pay progression

For the purposes of performance-related-pay progression, when a teacher is on maternity leave, it would be unlawful for the employer to deny her an appraisal and subsequent pay progression decision because of that absence. Arrangements should be made either prior to the start of the maternity for the appraisal to be held, or when she returns, following which the employer should award and backdate any pay increase that she is entitled to.

Conclusion

Managing staff on maternity well, should be to the benefit of all. At a time of poor retention, it is in the interests of employers to make all their employees feel valued, and fully understanding your obligations, as well as what it means to be an ethical employer, will help ensure that your staff feel valued and that they continue to contribute to your school or college for years to come.

YOUR CPD

Contractually Sound: How to ensure you have a robust contract of employment 26 April in Birmingham www.ascl.org.uk/soundcontract

Sara Ford
ASCL Pay, Conditions and Employment Specialist
@SaraFordEduc

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