Working Mums Club: Find Out The Latest Expert Advice On Maternity Rights, Flexible Work And Childcare

by Hannah Fox |
Published on

Missed our Working Mums Club Facebook chat with maternity rights and flexible work expert Sarah-Jane Butler? Don’t worry, you can read all her advice here

Twice a month at Mother&Baby we bring you the Working Mums Club Facebook chat – a chance to get your questions answered about work, childcare and motherhood. This week, Sarah-Jane Butler was on standby to answer your questions.

Sarah-Jane is an ex-city lawyer and founder of Parental Choice, which works together with parents and companies, sourcing childcare, advising on flexible working and dealing with all the administrative complexities involved, to help parents make the right childcare choice for them, their career and their family.

Sarah-Jane Butler

If you missed the chat, here’s what happened…

I applied to my employer for flexible working about two months ago and they say they're still considering it. Why is it taking so long and is there a way I can get them to speed the whole process up?

The previous rigid procedure for responding to requests for flexible working was swept away under The Children and Families Act 2014, which came into force on 13 March 2014. In particular, the Act removes the requirement for employers to follow the statutory procedure when considering a request and replaces it with a requirement that they consider requests in a “reasonable manner” and notify employees of their decision within three months, unless an extension is agreed. Previously, the employer had to arrange to meet the employee within 28 days of meeting the request to discuss the application and the within 14 days of that date the employer should have written to the employee to either agree to the new flexible working pattern or provide grounds for rejection.

"They should come back to you within three months of your original request"

To be honest, the penalties for breaching the old procedures were pretty limited and the time limits could be extended if the key decision maker at the place of employment was on holiday for example. The only recourse you really had was to go to an employment tribunal and make a complaint, which doesn't really help. They should now come back to you within three months of your original request.

I'm 12 weeks pregnant and my husband's work are saying that he'll have to take a half day holiday to come with me for my antenatal scans – is that right?

Fathers do not currently have the right to take time off for ante-natal appointments with their spouse. They will have the right as of 2015 to take unpaid leave to attend two antenatal appointments but that doesn't help you now. However, as a matter of good practice the government does encourage all employers to allow expectant fathers and partners to attend antenatal appointments without loss of pay and most do. He may be able to shame them into letting him come with you?

"Fathers do not currently have the right to take time off for ante-natal appointments with their spouse"

Where do I stand being on maternity leave and not securing a post in a new restructure at work? They're getting me ring-fenced to a post at a lower grade, and protecting my salary if I am successful at interview. I didn't think I needed an interview?

It is difficult to advise on this question without the full details but if there is a suitable job available during a redundancy process, then anyone on maternity leave gets preference over other employees. If there is not a suitable job available then technically it would be a redundancy situation.

The terms and conditions of any new job must be not substantially less favourable than your original job. You should be given first refusal of any suitable alternative job and you should not have to attend interviews as you have priority over other workers being made redundant (who are not on maternity leave).

A major factor in this is whether you are returning after Ordinary Maternity Leave (OML – the first 26 weeks of leave) or Additional Maternity Leave (AML – the second 26 weeks). An employee who returns to work during or at the end of her OML period is entitled to return to the same job on the same terms and conditions of employment as if she had not been absent. An employee who returns to work during or at the end of her AML period is entitled to return to the same or similar job on the same terms and conditions of employment as if she had not been absent.

"If there is a suitable job available during a redundancy process, then anyone on maternity leave gets preference over other employees"

However, if it is not reasonably practicable for the employer to let you return to your old job, an employer should offer you a job that is both suitable and appropriate for you to do on terms and conditions that are no less favourable than those for your original job. If an employer offers the employee a job that fulfils the criteria above and she unreasonably refuses it, she will have effectively resigned.

I've been looking into hiring a nanny, but have heard that you need to pay them a pension – is that right? How does it work?

You do not currently need to pay them a pension but you will have to by April 2017. Currently, employees have to pay in 1% of their gross salary, including tax relief, into the pension scheme whilst employers have to contribute another 1%. By October 2018 the total amount which will have to be paid into the scheme is due to rise to 8% (from 5% between October 2017 to September 2018), of which the employer pays 3%, the employee pays 4% and the government pays a further 1% in tax relief.

The Pensions Regulator has said it will write to all employers 12 months and then 3 months in advance of the date by which they are due to enrol their employees into a pension scheme, to ensure employers are aware of their duties and to explain what needs to be done to comply with the requirements. When an employer has completed the automatic enrolment process, they will then have to register with the Pensions Regulator.

In addition, as an employer, including a parent employing a nanny, you will also have to keep records of the automatic enrolment process. If you fail to comply with your duties, the Pensions Regulator may take enforcement action and issue a notice and / or a penalty.

"You do not currently need to pay nannies a pension but you will have to by April 2017"

There is an option for employees to opt-out and they have a month to opt out from the day they officially become a member of the scheme. So an employer will still have to set up a pension scheme and register before the employee can opt out. Plus an employer will still have to keep records even if their employee(s) have opted-out. Any payments already made into the scheme will be refunded. Employees who opt out can rejoin at any time and employers will also have a duty to automatically enroll employees back into the scheme approximately every three years provided that the employee is still eligible.

Employers will not be able to ask potential nannies at interview or current nannies if they plan to opt out of auto-enrolment, nor will they be able to offer inducement to opt out such as higher salaries or one-off bonuses.

I recently got asked to leave a temping job I’d been at for four months on no other terms then that I found out I was pregnant. I started the job in October 2013 and in November of that same year I found out I was pregnant and told my immediate boss, asking him to keep it secret (to which he proceeded to tell everyone). From that day onward, my workload seriously diminished I was also subjected to some snide remarks from his boss the HR manager. They told me they no longer needed me after January, even though my original temping contract wasn't due to be up until March 2014. I wondered if I had a leg to stand on legally?

You may have a claim if you can prove you were treated differently because of your pregnancy but it would depend on the details and I would recommend that you talk to a lawyer. From the dates you have given I am not sure that you would have qualified for statutory maternity pay (SMP) anyway as you have to have 26 weeks continuous service by the end of the 15th week prior to your expected week of childbirth to qualify for SMP.

If you only started in October and you were dismissed in January, then you would only have approximately 17 weeks of service. You will not get SMP if you are made redundant and stop being employed BEFORE your qualifying week (the 15th week before your baby is due) but you may be able to claim Maternity Allowance. If you are made redundant and stop being employed AFTER your qualifying week but before you start your maternity leave, you are still entitled to SMP.

If your employer has deliberately dismissed you in order to avoid paying you SMP and you would have qualified if they had not done this, your employer automatically becomes liable to pay it. You must apply to your local HM Revenue and Customs office within six months of the first day on which your SMP was due. You may also have a claim for unfair dismissal and sex discrimination (see below) and a claim for unpaid wages for loss of SMP but you would need to seek legal advice to clarify this. I hope this helps.

"If your employer has deliberately dismissed you in order to avoid paying you SMP which you would have otherwise qualified for, your employer automatically becomes liable to pay it"

Pregnancy is one of the protected characteristics for which you can claim unfair dismissal and discrimination before you have been working there two years so if you can show clearly that you were asked to leave because you were pregnant, then you may possibly have a case. Do speak to Citizens Advice or ACAS and they might be able to help you further.

I'm enrolling my baby in nursery for a few days a week and currently looking round different places. What should I be looking out for at each one?

I would say the key thing to be looking out for is whether the children there are happy but other things to look out for are:

  • What professional qualifications and experience do the staff and management have and how do they manage ongoing professional development.

  • Does the nursery meet safety and hygiene standards?

  • What is the adult/child ratio?

  • Are they sensitive to matters relating to gender, religion etc.

  • How does the learning environment look and feel?

  • Are there fun learning activities planned on a daily basis?

  • Are you and your child welcomed warmly?

  • Are you able to view and understand the policies and procedures?

  • How will you be involved in planning your child’s care?

  • How will your child be encouraged to feel happy and confident whatever his/her abilities?

  • How will your child’s special needs be met such as diet, naptime etc.?

  • How is discipline managed and will your preferences be met?

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