- Posted Tuesday July 18, 2017
What happens when an employee on a fixed-term contract to cover an employee on maternity leave asks for a meeting – only to tell you that they are pregnant too? No one said dealing with HR issues would be easy…
Thankfully, FPM’s HR expert Lisa Wainwright is here to help. The latest in our series of handy case studies explains what actions to take in just such a situation.
The legal position is as follows:
- You would be liable to pay any contractual maternity pay up to the point that the fixed-term contracts ends, as well as any outstanding statutory maternity pay the employee may have.
This is provided they have 26 weeks’ continuous service at the point of 15 weeks (known as the qualifying week) before the expected week of childbirth.
If the employee is a GP, you should also refer to Section 15 of the NHS Terms and Conditions Handbook and check whether her continuous service applies.
- If an employee is pregnant but does not have the required level of continuous service, they would still be entitled to the maternity leave, but should claim Maternity Allowance through the Job Centre.
- If the contract ends before the qualifying week, then you would not be required to pay maternity pay.
- If you did not wish to extend the contract (i.e. because the substantive post holder has returned from her own maternity leave), there is no obligation to do this.
- A pregnant employee or one on maternity leave is entitled to a written statement of the reason for her dismissal (in employment law, the end of a fixed-term contract is considered a dismissal).
- You can’t refuse to employ a suitable candidate on the grounds that she is - or might become - pregnant.
Here’s an example:
Rema is employed on a fixed-term contract that starts on 6 February 2017 and ends on 1 December 2017. Her expected week of childbirth (EWC) is 4 December to 8 December 2017. The qualifying week therefore begins on 21 August, 15 weeks before the EWC.
As she has more than 26 weeks' continuous service by 21 August, she will be entitled to Statutory Maternity Pay (SMP), even though her contract will end before her baby is due.
- If the situation is the same as above, but her employment ends on 25 August, during the qualifying week, Rema will still be entitled to SMP.
- If the she has a qualifying week beginning 21 August, but started employment on 3 July, she will not be entitled to SMP as she has less than 26 weeks' continuous employment at the relevant date.
Are you dealing with a tricky HR issue? First Practice Management members can contact Lisa for support with their queries via our email helpline at email@example.com