YOUR RIGHTS AFTER HAVING A BABY
“I love working in hospitality, but I also feel really strongly about having a baby at some point in the future. I’m worried that the two things are mutually exclusive. Am I wrong?” From the questions we receive on a weekly basis we know that the thought of having a kid can be a huge source of worry and concern in an industry which is historically seen as inhospitable to parents, whether that’s through hard physical conditions, long and unsociable hours or a culture of replaceability.
There is of course an irony here – our industry has such potential for offering incomparable flexibility, meaning that an open-minded attitude to hiring and retaining parents can be immensely beneficial for all involved. We are so heartened to see that more and more companies share this view, seeing parents as hugely valuable team assets. But we also know that this reassurance does not remove all of the inevitable nerves around how this huge life change fits into your work. One of the main ways you can avoid excessive anxiety, whether it’s justified or not, is to have absolute clarity around what you can and should expect from your employer.
The following breakdown should give you a good overview about what is and isn’t legal in the workplace, what you should expect from your employer, and some pointers about your own actions too. It’s an extensive field with a huge number of different situations to cover, but we hope that this will give you enough detailed insight to start you off right. We’ve added a list of organisations and resources at the end of this email, which will help you fill in the gaps.
What can you expect regarding parental leave?
You might have seen roles mentioning ‘Enhanced Parental Leave’, or maybe your own company offers this. That means that the employer is offering something above and beyond the statutory maternity or paternity pay, for the leave taken. Enhanced packages will vary from company to company, but the statutory is as below.
To qualify, you have to have worked for the same employer continuously for at least 26 weeks continuing into the ‘qualifying week’, which is calculated as the 15th week before the week of your due date. The Citizens Advice Bureau details your rights in a good clear article here which includes a handy date calculator. It also provides some details about what you might be entitled to if you have worked for too short a time to qualify, or if you are self-employed, both of which can make things complicated.
Over and above the initial maternity or paternity leave, you have the right to take a legally set amount of time off to look after your child at any point. That leave is unpaid, but it cannot be refused by your employer. Each parent can take up to 18 weeks of parental leave in total for each child, up until the child turns 18 (2 children = up to 36 weeks in total, 3 children = up to 54 weeks, etc). These are taken in blocks of one working week, up to 4 weeks per child per year. (2 children = up to 8 weeks per year, etc). You can find out more about unpaid parental leave here.
Statutory Maternity Leave is 52 weeks and you can opt to start any time from pregnancy right up to birth. It’s made up of ‘Ordinary Maternity Leave’ (OML), which is the first 26 weeks, and ‘Additional Maternity Leave’ (AML), which is the last 26 weeks. Many people take the full 52 weeks, but many also find that the statutory pay (below) is too low to allow them to take so long off. However you must take 2 weeks’ leave after your baby is born (or 4 weeks if you work in a factory – which many would agree may have a similar level of physical intensity as some hospitality roles).
Statutory Maternity Pay ( SMP ) is paid for up to 39 weeks. You will receive 90% of your average weekly earnings (before tax, without Tronc) for the first 6 weeks; and then £172.48 per week or 90% of your average weekly earnings (whichever is lower) for the next 33 weeks. This means that, if you’re taking 52 weeks off, the final 13 weeks are entirely unpaid. However, you will be accruing holiday during your maternity leave too. The legal minimum allowance for full-time workers is 5.6 weeks, so you should be paid your holiday salary in full for that holiday, which often helps cushion this a little (although most holiday is calculated without Tronc).
When your partner has had a baby, you are entitled to either 1 or 2 weeks off, which must be completed within 56 days of the birth (or of the due date, if your baby is early). Mirroring the maternity figure, the pay is £172.48 per week or 90% of your average weekly earnings (whichever is lower). This is also the figure you will receive if you choose to take shared parental leave, which you can find out more about here. This means that you can divide 50 weeks’ leave between the mother and the father (ie the leave over and above those first two obligatory weeks taken by the mother). This can be a good option for parents who both work in hospitality, so long as both parties meet the criteria.
What can you expect when you return to work?
You do not need to give any notice of return if you are going back to work at the end of maternity leave – that means that legally you could just go to work on the first day that you are due back (after the 52 weeks), but ideally you should have had a conversation with your employer before that point about your intentions. We cannot stress enough that straightforward and open dialogue is really crucial for ensuring that everyone gets what they need!
If you want to return to work before 52 weeks, for example when your statutory pay ends, you need to give at least 8 weeks’ notice.
It’s very important to note that you are protected against unfair treatment, unfair dismissal and discrimination because of pregnancy, childbirth and maternity. Your rights are very slightly different on returning to work after OML and AML. If you return to work before the end of your OML period, you are entitled to return to exactly the same job on the same terms and conditions as you were doing immediately before your maternity leave.
If you return to work before the end of your AML period the same applies – however at the end of this period if your employer can show that it is not reasonably practicable for you to return to the same job, you are entitled to be offered a suitable alternative job on similar terms and conditions. If this is the case then your employer is legally obliged to provide proof that you cannot return to your old job. You may have a legal case for maternity discrimination if your role has been demoted or changed, your responsibilities have been given to your colleagues, or your maternity cover has been kept in your role. Maternity Action has a very thorough page about this here.
Flexible working means changing the hours on your original contract, whether that means reducing them or changing your start/finish times. There are lots of types of flexible working, which can be really attractive – indeed sometimes absolutely essential – for working parents. The scope is wide; for people who are paid per shift they could discuss job sharing, or staggered hours (different start and finish times), or compressed hours (meaning the same number of shifts within fewer days).
For people on salaries you could even think about annualised hours, whereby there are ‘core hours’ which you regularly work each week, then the rest of their hours are taken flexibly or when there’s extra demand. Not all these will work for every person, or for every business. Childcare will differ wildly in every single case, and so will the needs and the structure of the business. There’s no one-size-fits-all solution, which makes open, fair and reasonable communication on both sides absolutely crucial.
Everybody has the right to request flexible working, and the employer is legally obliged to deal with the request ‘in a reasonable manner’. Examples of this include assessing the advantages and disadvantages of the application, holding a meeting to discuss the request with the employee and offering an appeal process if the request is denied. It is important to note that whilst you have the legal right to request flexible working, your employer is under no obligation to grant the request “if they have a good business reason for doing so”. (the exception is that if you work night shifts and are pregnant, breastfeeding or have given birth in the last six months, you have the legal right to transfer to a suitable daytime role). You can find out more about how to request flexible working here.
Unlike the specific clause about factory work, hospitality is just treated as any other workplace, even though it can be a highly physically demanding environment. The below points for returning mothers are applicable for ALL workplaces, but we are highlighting them as particularly relevant in a hospitality setting.
Your employer is legally obliged to do health and safety risk assessments for “women of childbearing age, including pregnant women and new mothers”. If you are concerned about the risks related to your specific field of work – for example long hours on your feet or lifting heavy bags of flour, both of which can be challenging if you are breastfeeding or have any long-term physical difficulties related to birth – then you should speak to your doctor. The medical professional may be able to reassure you, or they may deem the intensity of the role is too much for you or your specific condition. If they are concerned then they can outline the risks in a written document to present to your employer, who should take this into account in the risk assessment.
New parenthood is exhausting and you will need breaks more than ever – but our industry has been notorious for ignoring the break (although things are changing). Remember that breaks are your legal right, even if there isn’t a culture of actually taking them – and even if you were used to powering through before you became a parent.
If you are breastfeeding, you may need to express at work. Employers are not legally compelled to give specific lactation breaks or even to give you somewhere private to express, but they ARE obliged to give you somewhere “suitable to rest”. It can be really hard when back-of-house areas are most often fairly cramped and a bit grotty! You will need to use your regular (legally obligated!) breaks to express, but you should definitely have a conversation about what you need – whether you need to use the privacy of an office at certain times, or you might need a discreet bit of fridge space for expressed milk.
Every parent knows the dreaded call from childcare – you have to come home, your kid has a temperature. Or that sudden fit of vomiting, or the doctor’s appointment which has suddenly come available. All of which inevitably mean that you have to call your boss and say that you can’t come in, or have to leave early. Hospitality teams are often tight – both in terms of hours when labour is so scarce and in terms of camaraderie – which really add to the guilt. There isn’t anything you can do about that awful feeling that you’re letting people down, but you should know that all employees have the legal right to reasonable time off to look after a child. What’s ‘reasonable’ depends on the situation and circumstances involved, and you need to let your employer know the reason for the absence and how much time you’ll need. This time off is without pay (unless your contract says otherwise, which is rare).
In every workplace context, whether you’re a parent or not, it’s absolutely essential to be familiar with what is contained within your contract and within the company handbook. If you are planning a family and are unhappy with how this is dealt with in the company you work, you can think about looking elsewhere. A constant theme of the advice above is the importance of open and clear dialogue between employer and employee, and if this is done with a base knowledge of company policy then it helps to manage expectation and ensure a really positive outcome all round.
And remember – the laws regarding workplace danger, discrimination or dismissal are tight, and they’re here to protect you. Bringing a case can be lengthy and expensive – but that should mean that your employer doesn’t want that (or the reputational damage to them) any more than you do, so good practice is likely to be the expectation NOT the exception.